Exhibit 2.4.2
EXECUTION COPY
SECOND AMENDMENT AND AGREEMENT
SECOND AMENDMENT AND AGREEMENT, dated as of September 9, 1997 (this
"Amendment"), to the Existing Credit Agreement (as hereinafter defined), by
and among INTERNATIONAL AIRLINE SUPPORT GROUP, INC., a Delaware corporation
(the "Borrower"), and BNY Financial Corporation, a New York corporation (the
"Lender").
RECITALS
The Borrower and the Lender have entered into the Existing Credit
Agreement, pursuant to which the Lender is providing to the Borrower (i) a
$13,000,000.00 revolving credit facility (the "Revolver Facility"), a
$3,000,000.00 term loan facility (the "Term Loan A Facility"), and a
$3,750,000.00 term loan facility (the "Term Loan B Facility") which is
secured by accounts receivable, inventory and other collateral of the
Borrower. The Borrower has requested that the Lender provide an additional
$1,500,000.00 term loan facility (as more specifically defined below, the
"Term Loan C Facility") for the acquisition of one (1) XxXxxxxxx Xxxxxxx
DC-9-51 aircraft (bearing manufacturer's serial number 47663) (the "Aircraft
Acquisition"). Subject to the terms and conditions hereof, the Lender is
willing to provide the Term Loan C Facility to the Borrower and to amend
certain provisions of the Existing Credit Agreement in order to effectuate
the foregoing.
In consideration of the foregoing and of the mutual covenants and
undertakings herein contained, the parties hereto hereby agree that the
Existing Credit Agreement is amended as hereinafter provided.
ARTICLE I
Definitions
1. Definitions. (a) In addition to the definitions set forth in
the heading and the recitals to this Amendment, the following definitions
shall apply to this Amendment:
"Agreement": means the Credit Agreement, dated as of September 30, 1996,
between the Borrower and the Lender, as amended by the First Amendment,
Waiver and Agreement, dated as of March 24, 1997, between the Borrower and
the Lender, as further amended, supplemented or otherwise modified from time
to time up to and including this Amendment.
"Existing Credit Agreement": means the Credit Agreement, dated as of
September 30, 1996, between the Borrower and the Lender, as amended by the
First Amendment, Waiver and Agreement, dated as of March 24, 1997, between
the Borrower and
the Lender, as the same may have been further amended, supplemented or
modified from time to time up to but not including the effectiveness of this
Amendment.
"Second Amendment Documents": this Amendment, the Sun Jet Consent and
Agreement (as defined in Article III, Section 1 hereof), the Term Loan C
Aircraft Chattel Mortgage (as defined in Article III, Section 1 hereof), the
Sun Jet Lease (as defined in Article III, Section 1 hereof), the Sun Jet
Aircraft Lease Supplement and Receipt (as defined in Article III, Section 1
hereof), Term Note C (as defined in Article III, Section 1 hereof), and any
other agreements, instruments and documents executed or delivered pursuant to
or in connection with this Amendment and the transactions contemplated
thereby.
(b) Unless otherwise indicated, capitalized terms that are used but not
defined herein shall have the meanings ascribed to them in the Existing
Credit Agreement.
ARTICLE II
Representations
1. Representations. (a) The Borrower hereby represents and warrants
as follows:
(i) It (A) is duly organized, validly existing and in good standing under
the laws of the jurisdiction of its organization, (B) has the power and
authority, and the legal right, to own and operate its property, to lease the
property it operates as lessee and to conduct the business in which it is
currently engaged, (C) is duly qualified and in good standing under the laws
of each jurisdiction where its ownership, lease or operation of property or
the conduct of its business requires such qualification and (D) is in
compliance with all Requirements of Law except to the extent that the failure
to comply therewith reasonably could not, in the aggregate, be expected to
have a Material Adverse Effect.
(ii) It has the power and authority, and the legal right, to make,
deliver and perform this Amendment and the other Second Amendment Documents
to which it is a party and to borrow under the Agreement and has taken all
necessary action to authorize the borrowings on the terms and conditions of
the Agreement and this Amendment and to authorize the execution, delivery and
performance of the Second Amendment Documents to which it is a party. No
consent or authorization of, filing with, notice to or other act by or in
respect of, any Governmental Authority or any other Person is required in
connection with the borrowings under the Agreement or with the execution,
delivery, performance, validity or enforceability of the Second Amendment
Documents to which it is a party. Each Second Amendment Document to which
the Borrower is a party has been or will be duly executed and delivered on
behalf of the Borrower. Each Second Amendment Document to which the Borrower
is a party when executed and delivered will constitute a legal, valid and
binding obligation of the Borrower enforceable against it in accordance with
its terms, subject to the effects of 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.
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(iii) The conditions contained in Article IV hereof have been satisfied.
(b) The Borrower represents that each of the Credit Documents is on the
date hereof in full force and effect.
ARTICLE III
Amendments to Existing Credit Agreement
1. Amendments to Section 1. (a) Section 1.1 of the Existing Credit
Agreement is hereby amended by inserting the following new definitions therein
in alphabetical order:
"Second Amendment": that certain Second Amendment and Agreement, dated
as of September 9, 1997, between the Borrower and the Lender.
"Second Amendment Documents": the Second Amendment, the Sun Jet
Consent and Agreement, the Term Loan C Aircraft Chattel Mortgage, the Sun
Jet Lease, the Sun Jet Aircraft Lease Supplement and Receipt, Term Note C,
and any other agreements, instruments and documents executed or delivered
pursuant to or in connection with the Second Amendment and the transactions
contemplated thereby.
"Second Amendment Effective Date": the date on which all of the
conditions precedent to the effectiveness of the Second Amendment set forth
in Article IV of the Second Amendment are first satisfied or waived.
"Sun Jet": means Sun Jet International, Inc., a Delaware corporation.
"Sun Jet Aircraft Lease Supplement and Receipt": the collective
reference to the Lease Supplement and Receipt, dated as of the date of its
execution and delivery between the Borrower and Sun Jet.
"Sun Jet Consent and Agreement": that certain Consent and Agreement,
dated as of the date hereof, by and among Sun Jet, the Borrower and the
Lender, in respect of the Sun Jet Lease.
"Sun Jet Lease": the Aircraft Lease Agreement in respect of the Term
Loan C Aircraft, dated as of August 8, 1997, and between Sun Jet (as
lessee) and the Borrower (as lessor), as the same may be amended,
supplemented or modified from time to time.
"Term Loan C": as defined in Section 2.3(c) (together with any advance
made in connection with the substitution of a Term Loan C Aircraft or a
Term Loan C Aircraft Engine pursuant to Section 2.5(c)).
"Term Loan C Aircraft": means each Aircraft owned from time to time by
the Borrower and listed as a Term Loan C Aircraft and described on Schedule
I hereto, as the same may be amended or modified from time to time in
accordance with this Agreement.
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"Term Loan C Aircraft Chattel Mortgage": the Aircraft Chattel
Mortgage, dated as of the Second Amendment Effective Date, from the
Borrower to the Lender with respect to a Term Loan C Aircraft.
"Term Loan C Aircraft Engine": means each Aircraft Engine owned from
time to time by the Borrower and listed as a Term Loan C Aircraft Engine
and described on Schedule I hereto, as the same may be amended or modified
from time to time in accordance with this Agreement.
"Term Loan C Borrowing Base": at any time, an amount equal to 60% (or
such other percentage as the Lender shall determine in its sole discretion)
of the Forced Liquidation Value, after deduction of any applicable
Collateral Reserves, at such time, of all Term Loan C Aircraft.
"Term Loan C Facility": at any time, the obligation of the Lender to
make Term Loan C in accordance with the provisions of this Agreement, which
shall not exceed an amount equal to $1,500,000.00 minus the aggregate
amount of repayments of principal then required to have been made in
accordance with Schedule 2.3C.
"Term Note C": a promissory note of the Borrower evidencing Term Loan
C, in form and substance acceptable to the Lender.
(b) The definition of the term "Approved Aircraft" in Section 1.1 of the
Existing Credit Agreement is hereby deleted in its entirety and replaced by the
following:
""Approved Aircraft": means the collective reference to the Term Loan
A Aircraft, the Term Loan A Aircraft Engines, the Term Loan B Aircraft, the
Term Loan B Aircraft Engines, the Term Loan C Aircraft and the Term Loan C
Aircraft Engines."
(c) The definition of the term "Credit Documents" in Section 1.1 of the
Existing Credit Agreement is hereby deleted in its entirety and replaced by the
following:
""Credit Documents": this Agreement, the First Amendment, the Second
Amendment, the Security Documents, each Consent and Agreement, Term Note A,
Term Note B, Term Note C, any Revolver Note and any other documents,
agreements or instruments executed and delivered to the Lender pursuant to
Section 6.11."
(d) The definition of "Revolver Reserve" in Section 1.1 of the Existing
Credit Agreement is hereby deleted in its entirety and replaced by the
following:
""Revolver Reserve": as of any date, an amount equal to the lesser of
(i) the amount, if any, by which the sum determined in accordance with
clause I of the definition of Revolver Borrowing Base on such date exceeds
the aggregate outstanding Revolver Advances on such date and (ii) the
amount, if any, by which the sum of the Term Loan A Facility (without
regard to any Term Loan A borrowings made prior to
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or on such date) on such date, the Term Loan B Facility (without regard to
any Term Loan B borrowings made prior to or on such date) on such date and
the Term Loan C Facility (without regard to any Term Loan C borrowings made
prior to or on such date) on such date exceeds the sum of the Term Loan A
Borrowing Base on such date, the Term Loan B Borrowing Base and the Term
Loan C Borrowing Base on such date."
(e) The definition of "Term Loan Borrowing Bases" in Section 1.1 of the
Existing Credit Agreement is hereby deleted in its entirety and replaced by the
following:
"Term Loan Borrowing Bases": the collective reference to the Term Loan
A Borrowing Base, the Term Loan B Borrowing Base and the Term Loan C
Borrowing Base.
(f) The definition of "Term Loan Facilities" in Section 1.1 of the Existing
Credit Agreement is hereby deleted in its entirety and replaced by the
following:
"Term Loan Facilities": the collective reference to the Term Loan A
Facility, the Term Loan B Facility and the Term Loan C Facility.
(f) The definition of "Term Loans" in Section 1.1 of the Existing Credit
Agreement is hereby deleted in its entirety and replaced by the following:
"Term Loans": the collective reference to Term Loan A, Term Loan B and
Term Loan C.
2. Amendments to Section 2.3. (a) subsection (a) of Section 2.3
of the Existing Credit Agreement is hereby amended by deleting the parenthetical
in the seventh line thereof in its entirety and replacing it with the following:
"(without regard to the Term Loan B Facility, the Term Loan B Borrowing Base,
the Term Loan C Facility or the Term Loan C Borrowing Base)"
(b) Section 2.3 of the Existing Credit Agreement is hereby amended by
deleting subsection (b) in its entirety and replacing it with the following:
"(b) Subject to the terms and conditions hereof, the Lender agrees to
make a term loan to the Borrower in one advance (such advance, together
with any advances made in connection with the substitution of Term Loan B
Aircraft or Term Loan B Aircraft Engines pursuant to Section 2.5(b) hereof,
"Term Loan B") on the First Amendment Effective Date in the principal
amount of the lesser of (a) the Term Loan B Facility on such date and (b)
the Term Loan B Borrowing Base on such date. Term Loan B shall be dated
the First Amendment Effective Date, stated to mature in the installments
and amounts payable on the dates set forth in Schedule 2.3B hereto, and
bear interest for the period from the First Amendment Effective Date on the
unpaid principal amount thereof at the applicable interest rates per annum
specified in Section 3.1. All payments of principal thereof shall reduce
the Term Loan B Facility on a dollar-for-dollar basis.
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(c) Subject to the terms and conditions hereof, the Lender agrees to
make a term loan to the Borrower in one advance (such advance, together
with any advances made in connection with the substitution of Term Loan C
Aircraft or Term Loan C Aircraft Engines pursuant to Section 2.5(c) hereof,
"Term Loan C") on the Second Amendment Effective Date in the principal
amount of the lesser of (a) the Term Loan C Facility on such date and (b)
the Term Loan C Borrowing Base on such date. Term Loan C shall be dated
the Second Amendment Effective Date, stated to mature in the installments
and amounts payable on the dates set forth in Schedule 2.3C hereto, and
bear interest for the period from the Second Amendment Effective Date on
the unpaid principal amount thereof at the applicable interest rates per
annum specified in Section 3.1. All payments of principal thereof shall
reduce the Term Loan C Facility on a dollar-for-dollar basis."
3. Amendments to Section 2.5. Section 2.5 of the Existing Credit
Agreement is hereby amended by inserting the following as subsection (c) at the
end of such Section:
"(c) At the request of the Borrower and after substitution of a Term
Loan C Aircraft or a Term Loan C Aircraft Engine (the "Substitute Term Loan
C Aircraft or Engine") for a Term Loan C Aircraft or a Term Loan C Aircraft
Engine which has been sold or has suffered an Event of Loss within six
months after repayment of Term Loan C to the extent and as required by
Section 3.3(d) hereof, the Lender may make an advance in an amount equal to
the lesser of (i) 60% (or such other percentage as the Lender shall
determine in its sole discretion) of the Forced Liquidation Value of the
Substitute Term Loan C Aircraft or Engine, less any applicable Collateral
Reserve, and (ii) the amount, if any, by which (A) $1,500,000.00 minus all
repayments of principal made, or required to have been made on or prior to
the date of such advance in accordance with Schedule 2.3C hereto exceeds
(B) the outstanding principal balance of Term Loan C on such date (prior to
the making of such advance). Each such advance, if any, shall be made in
the sole and absolute discretion of the Lender and shall be deemed to
comprise part of Term Loan C for all purposes hereunder and shall increase
the Term Loan C Facility on a dollar-for-dollar basis. From and after the
making of such advance the outstanding principal balance of Term Loan C
shall include the amount of such advance, interest shall be payable on such
amount, and the amount of each remaining scheduled principal repayment
shall be increased by an amount equal to (x) the amount of such advance
times (y) a fraction the numerator of which is an amount equal to such
scheduled principal repayment and the denominator of which is the aggregate
amount of all remaining scheduled principal repayments."
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4. Amendments to Section 3.2(b). Section 3.2(b) of the Existing
Credit Agreement is hereby deleted in its entirety and replaced by the
following:
"(b) The Borrower may at any time and from time to time prepay any or
all of the Term Loans, in whole or in part, without premium or penalty
after giving to the Lender notice, which must be received by the Lender no
later than 12:00 noon, New York City time on the date of such prepayment
and which must specify the date and amount of prepayment and identify the
Term Loan as to which such prepayment relates. If any such notice is
given, the amount specified in such notice shall be due and payable on the
date specified therein with respect to the Term Loan specified therein and
the amount of such payments shall be applied against scheduled repayments
of principal thereof on a pro rata basis and shall reduce the related Term
Loan Facility on a dollar-for-dollar basis."
5. Amendments to Section 3.3. Paragraph (b) of Section 3.3 of the
Existing Credit Agreement is hereby deleted in its entirety and replaced by the
following:
"(b) (i) If on any date on which a Borrowing Base Certificate is
required to be delivered pursuant to Section 6.2(c), the aggregate
outstanding principal amount of the Term Loans exceeds an amount equal to
the sum of the Term Loan Borrowing Bases and the Revolver Reserve, the
Borrower shall immediately prepay the Term Loans in an aggregate amount
equal to the amount of such excess. The amount of such payment shall
reduce the Term Loan Facilities on a dollar-for-dollar basis and shall be
applied (A) first against the repayment of Term Loan A to the extent that
the outstanding principal amount of Term Loan A exceeds the Term Loan A
Borrowing Base, then against the repayment of Term Loan B to the extent
that the outstanding principal amount of Term Loan B exceeds the Term Loan
B Borrowing Base, and then against the repayment of Term Loan C, and (B) in
each such case, against scheduled repayments of principal on a pro rata
basis.
(ii) Without in any way limiting the provisions of clause (i) of this
Section 3.3(b), if at any time during the period commencing with and
including month 25 and ending with and including month 35, in each case as
set forth on Schedule 2.3B hereto, the outstanding principal amount of Term
Loan B exceeds the sum of (i) the Term Loan B Borrowing Base, (ii) the
excess if any of the Term Loan A Borrowing Base over the outstanding
principal amount of Term Loan A and (iii) the excess, if any, of the Term
Loan C Borrowing Base over the outstanding principal amount of Term Loan C,
the Borrower shall immediately prepay Term Loan B in an amount equal to
such deficiency.
(iii) Without in any way limiting the provisions of clause (i) of this
Section 3.3(b), if at any time during the period commencing with and
including month 22 and ending with and including month 26, in each case as
set forth on Schedule 2.3C hereto, the outstanding principal amount of Term
Loan C exceeds the sum of (i) the Term Loan C Borrowing Base, (ii) the
excess if any of the Term Loan A Borrowing Base over the outstanding
principal amount of Term Loan A and (iii) the excess if any
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of the Term Loan B Borrowing Base over the outstanding principal amount of
Term Loan B, the Borrower shall immediately prepay Term Loan C in an amount
equal to such deficiency."
6. Amendments to Section 3.5(e). The THIRD and FOURTH enumerated
paragraphs of Section 3.5(e) of the Existing Credit Agreement are hereby deleted
in their entirety and replaced by the following:
"THIRD, to the payment in full of the outstanding principal of the
Revolver Advances and, upon the occurrence and during the continuance of an
Event of Default, at the option of the Lender, to the payment in full of
the outstanding principal of any or all of the Term Loans;
FOURTH, to the payment in full of all other Obligations then due and
payable (including, without limitation, any installment of principal of any
or all of the Term Loans then due and payable); and"
7. Amendments to Section 3.5(f). Subsections (ii) and (iii) of
Section 3.5(f) of the Existing Credit Agreement are hereby deleted in their
entirety and replaced by the following:
"(ii) if, after termination of such Aircraft Lease, return to the
Borrower of the related Aircraft and receipt by the Lender of an Appraisal
with respect thereto, (x) the amount of Loans outstanding does not exceed
the sum of the Term Loan Borrowing Bases and the Revolver Borrowing Base,
(y) no Event of Default shall have occurred and be continuing, and (z)
Borrower certifies in writing to Lender that it does not intend to take the
related Aircraft out of service and/or part out such Aircraft, the Lender
shall, upon request of the Borrower, pay such funds to the Borrower if and
to the extent required by such Aircraft Lease; and
(iii) if, after termination of such Aircraft Lease such funds are not
required to be paid to the lessee thereunder and (x) the amount of Loans
outstanding exceeds the sum of the Term Loan Borrowing Base and the
Revolver Borrowing Base, (y) an Event of Default shall have occurred and be
continuing, or (z) Borrower fails to certify in writing to the Lender that
it does not intend to take the related Aircraft out of service and/or part
out such Aircraft, the Lender shall apply such funds in accordance with the
provisions of paragraph (e) of this Section 3.5."
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8. Amendments to Section 3.5(g). Section 3.5(g) of the Existing
Credit Agreement is hereby deleted in its entirety and replaced by the
following:
"(g) The Borrower agrees that, upon the request by the Lender, the
Borrower will execute and deliver to the Lender (i) a promissory note of
the Borrower evidencing Term Loan A of the Lender, in form and substance
acceptable to the Lender ("Term Note A"), (ii) a promissory note of the
Borrower evidencing Term Loan B of the Lender, in form and substance
acceptable to the Lender ("Term Note B"), (iii) a promissory note of the
Borrower evidencing Term Loan C of the Lender, in form and substance
acceptable to the Lender ("Term Note C"), and/or (iv) a promissory note of
the Borrower evidencing the Revolver Advances of the Lender in form and
substance acceptable to the Lender (a "Revolver Note")."
9. Amendments to Section 6.2(c). Section 6.2(c) is hereby deleted in
its entirety and replaced by the following:
"(c) prior to 2:00 p.m., New York City time on each Business Day, a
Borrowing Base Certificate showing the Revolver Borrowing Base, the Term
Loan A Borrowing Base, the Term Loan B Borrowing Base and the Term Loan C
Borrowing Base (but only, (i) in the case of the Term Loan A Borrowing
Base, in connection with the delivery of the first such certificate
hereunder and in each case that the Term Loan A Borrowing Base changes from
the amount thereof most recently reported, (ii) in the case of the Term
Loan B Borrowing Base, in connection with the delivery of such certificate
on the First Amendment Effective Date and in each case that the Term Loan B
Borrowing Base changes from the amount thereof most recently reported), and
(iii) in the case of the Term Loan C Borrowing Base, in connection with the
delivery of such certificate on the Second Amendment Effective Date and in
each case that the Term Loan C Borrowing Base changes from the amount
thereof most recently reported), in each case as of the immediately
preceding Business Day, certified as complete and correct by a Responsible
Officer or any vice president on behalf of the Borrower, which Borrowing
Base Certificate shall disclose daily updates of the amount of Eligible
Accounts and Eligible Lease Payment Receivables, weekly updates of the
amount of Eligible Inventory and the Forced Liquidation Value of Approved
Aircraft when required;"
10. Amendments to Schedule I. Schedule I to the Existing Credit Agreement
is hereby amended in its entirety to read as is set forth on Schedule I hereto.
11. Amendments to Schedule 1.1. Schedule 1.1 to the Existing Credit
Agreement is hereby amended in its entirety to read as is set forth on Schedule
1.1 hereto.
12. Amendments to Schedules 2.3A and 2.3B. Schedules 2.3A and 2.3B are
hereby amended to include Schedule 2.3C, which shall read as is set forth on
Schedule 2.3C hereto.
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ARTICLE IV.
Conditions to Effectiveness
This Amendment, and the modifications to the Credit Agreement provided
for herein, shall become effective on the date (the "Second Amendment
Effective Date") on which all of the following conditions have been (or are
concurrently being) satisfied:
1. The following documents shall have been executed and delivered by
each party thereto:
(i) this Amendment;
(ii) the Term Loan C Aircraft Chattel Mortgage;
(iii) the Sun Jet Aircraft Lease;
(iv) the Sun Jet Consent and Agreement;
(v) the Term Note C; and
(vi) all Uniform Commercial Code financing statements on Form UCC-1 and
UCC-3 required by the Lender.
2. The Lender shall have received executed legal opinions of King
& Spalding, special counsel to the Borrower, in form and substance
satisfactory to the Lender and taking into account this Amendment and the
matters contemplated hereby (including, without limitation, opinions with
respect to the validity of the Second Amendment Documents and the
effectiveness of UCC filings in each state where Collateral described therein
is located). Such legal opinion shall cover such matters incident to the
transactions contemplated by this Amendment and the other Second Amendment
Documents as the Lender may reasonably require.
3. The Lender shall have received the executed legal opinion of
Xxxxx & Xxxxxxx, special FAA counsel to the Borrower, in form and substance
satisfactory to the Lender taking into account this Amendment and the matters
contemplated hereby (including, without limitation, opinions as to the
effectiveness of the filing of the Term Loan C Aircraft Chattel Mortgage and
the Sun Jet Aircraft Lease with the FAA). Such legal opinion shall cover
such matters incident to the transactions contemplated by this Amendment and
the other Second Amendment Documents as the Lender may reasonably require.
4. The Lender shall have received a copy, in form and substance
reasonably satisfactory to the Lender, of the corporate resolutions of the
Borrower, authorizing the Aircraft Acquisition and the execution, delivery
and performance of this Amendment and the other Second Amendment Documents to
which the Borrower is a party, certified by the Secretary or an Assistant
Secretary of the Borrower as of the Second Amendment Effective Date, which
certificates shall state that the resolutions or authorizations thereby
certified have not been amended, modified, revoked or rescinded as of the
date of such certificate.
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5. The Lender shall have received a certificate of the Secretary
or an Assistant Secretary of the Borrower, dated the Second Amendment
Effective Date, as to the incumbency and signature of the officer(s) of the
Borrower executing each Second Amendment Document to which it is a party and
any certificate or other document to be delivered by it pursuant hereto,
together with evidence of the incumbency of such Secretary or Assistant
Secretary.
6. The Lender shall have received certificates from the Borrower,
stating that its Governing Documents have not been amended since September
30, 1996.
7. The Lender shall have received copies of certificates dated as
of a recent date from the Secretary of State or other appropriate authority
of such jurisdiction, evidencing the good standing of the Borrower in the
State of its organization and in each State where the ownership, lease or
operation of property or the conduct of business requires it to qualify as a
foreign corporation or other entity except where the failure to so qualify
would not have a Material Adverse Effect.
8. The Lender shall have received all chattel paper original
copies of the Sun Jet Lease and all documents required to be delivered under
Article Three of the Term Loan C Aircraft Chattel Mortgage.
9. Each of the representations and warranties made by the Borrower
in or pursuant to the Credit Documents shall be true and correct in all
material respects on and as of the Second Amendment Effective Date as if made
on and as of such date (except to the extent the same relate to another,
earlier date, in which case they shall be true and correct in all material
respects as of such earlier date).
10. No Default or Event of Default shall have occurred and be continuing.
11. All corporate and other proceedings, and all documents, instruments
and other legal matters in connection with the transactions contemplated by
the Second Amendment Documents, the Existing Credit Agreement, the Credit
Agreement and the other Credit Documents shall be reasonably satisfactory in
form and substance to the Lender, and the Lender shall have received such
other documents in respect of any aspect or consequence of the transactions
contemplated hereby or thereby as it shall reasonably request.
12. The Lender shall have received a Borrowing Base Certificate showing
the Revolver Borrowing Base, the Term Loan A Borrowing Base, the Term Loan B
Borrowing Base, and the Term Loan C Borrowing Base, in each case as of the
Business Day immediately preceding the Second Amendment Effective Date, with
appropriate insertions and dated the Second Amendment Effective Date,
satisfactory in form and substance to the Lender, executed by a Responsible
Officer or any Vice President of the Borrower.
13. The Lender shall have received evidence in form and substance
satisfactory to it that all of the requirements of Section 6.6 of the
Existing Credit Agreement
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and Section 5(o) of the Borrower Security Agreement shall have been satisfied
with respect to the Term Loan C Aircraft.
14. The Lender shall have received evidence in form and substance
satisfactory to it that all filings, recordings, registrations and other
actions, including, without limitation, the filing of a duly executed
Aircraft Chattel Mortgage with the FAA and financing statements on forms
UCC-1, necessary or, in the opinion of the Lender, desirable to perfect the
Liens created by the Security Documents with respect to the Term Loan C
Aircraft shall have been completed.
15. The Lender shall have received each additional document, instrument,
legal opinion or item of information reasonably requested by the Lender,
including, without limitation, a copy of any debt instrument, security
agreement or other material contract to which the Borrower is be a party.
ARTICLE V.
Miscellaneous
1. Closing Fee; Payment of Expenses. (a) On the First Amendment
Effective Date, the Borrower shall pay to the Lender in immediately available
funds a fee equal to $15,000.00 (which shall be in addition to all fees paid
to the Lender prior to the execution and delivery of this Amendment). The
Lender is hereby authorized to withhold the amount of such fee from the
proceeds of Term Loan C.
(b) Without limiting its obligations under Section 9.5 of the
Existing Agreement, the Borrower agrees to pay or reimburse the Lender for
all of its reasonable costs and expenses incurred in connection with this
Amendment and the other Second Amendment Documents, including, without
limitation, the reasonable costs and expenses of Cadwalader, Xxxxxxxxxx &
Xxxx, counsel to the Lender and expressly acknowledge that their obligations
hereunder constitute "Obligations" within the meaning of the Existing Credit
Agreement.
2. Sun Jet Aircraft Lease Supplement and Receipt. Borrower hereby
agrees that that it shall deliver to the Lender an original executed copy of
the Sun Jet Aircraft Lease Supplement and Receipt immediately upon its
execution and delivery by the Borrower and Sun Jet.
3. No Other Amendments; Confirmation. Except as expressly
amended, modified and supplemented hereby and by the documents related
hereto, the provisions of the Existing Credit Agreement and the other Credit
Documents shall remain in full force and effect.
4. Acknowledgment. The Borrower hereby acknowledges that the Sun
Jet Consent and Agreement constitutes a Consent and Agreement under the
Agreement and the Term Loan C Aircraft Chattel Mortgage constitutes an
Aircraft Chattel Mortgage under the Agreement.
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5. Affirmation by Borrower. The Borrower hereby consents to the
execution and delivery of this Amendment and each of the other Second
Amendment Documents to which Borrower is a party and reaffirms its
obligations under the Credit Documents.
6. Governing Law; Counterparts. (a) This Amendment and the
rights and obligations of the parties hereto shall be governed by, and
construed and interpreted in accordance with, the laws of the State of New
York.
(b) This Amendment may be executed by one or more of the parties
hereto on any number of separate counterparts, and all of said counterparts
taken together shall be deemed to constitute one and the same instrument. A
set of the counterparts of this Amendment signed by all the parties shall be
lodged with the Borrower and the Lender. This Amendment may be delivered by
facsimile transmission of the relevant signature pages hereof.
[SIGNATURE PAGE FOLLOWS ]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly
executed and delivered as of the day and year first above written.
INTERNATIONAL AIRLINE SUPPORT
GROUP, INC.
By ____________________________________
Name:
Title:
BNY FINANCIAL CORPORATION
By ____________________________________
Name:
Title:
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