Exhibit 2.4.3
EXECUTION COPY
THIRD AMENDMENT AND AGREEMENT
THIRD AMENDMENT AND AGREEMENT, dated as of October 15, 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"), (ii) a
$3,000,000.00 term loan facility (the "Term Loan A Facility"), (iii) a
$3,750,000.00 term loan facility (the "Term Loan B Facility") and (iv) a
$1,500,000.00 term loan facility (the "Term Loan C Facility") which are secured
by accounts receivable, inventory and other collateral of the Borrower. The
Borrower has requested that the Lender provide an additional $1,600,000.00 term
loan facility (as more specifically defined below, the "Term Loan D Facility")
for the acquisition of one (1) XxXxxxxxx Xxxxxxx DC-9-51 aircraft (bearing
manufacturer's serial number 47667) (the "Aircraft Acquisition"). Subject to
the terms and conditions hereof, the Lender is willing to provide the Term Loan
D 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
and the Second Amendment, Waiver and Agreement, dated as of September 9, 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 and the Second Amendment, Waiver and Agreement, dated as
of September 9, 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.
"Third Amendment Documents": this Amendment, the Sun Jet Consent and
Agreement (as defined in Article III, Section 1 hereof), the Term Loan D
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 D (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 Third 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 Third 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 Third Amendment Documents to which it is a
party. Each Third Amendment Document to which the Borrower is a party has been
or will be duly executed and delivered on behalf of the Borrower. Each Third
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
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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.
(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:
"Third Amendment": that certain Third Amendment and Agreement, dated
as of October ___, 1997, between the Borrower and the Lender.
"Third Amendment Documents": the Third Amendment, the Sun Jet Consent
and Agreement, the Term Loan D Aircraft Chattel Mortgage, the Sun Jet
Lease, the Sun Jet Aircraft Lease Supplement and Receipt, Term Note D, and
any other agreements, instruments and documents executed or delivered
pursuant to or in connection with the Third Amendment and the transactions
contemplated thereby.
"Third Amendment Effective Date": the date on which all of the
conditions precedent to the effectiveness of the Third Amendment set forth
in Article IV of the Third 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 D Aircraft, dated as of September 5, 1997, and between Sun Jet (as
lessee) and the Borrower (as lessor), as amended by that certain Amendment
No. 1 to Aircraft Lease Agreement dated as of September 16, 1997, as the
same may be further amended, supplemented or modified from time to time.
"Term Loan D": as defined in Section 2.3(c) (together with any advance
made in connection with the substitution of a Term Loan D Aircraft or a
Term Loan D Aircraft Engine pursuant to Section 2.5(c)).
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"Term Loan D Aircraft": means each Aircraft owned from time to time by
the Borrower and listed as a Term Loan D Aircraft 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 D Aircraft Chattel Mortgage": the Aircraft Chattel
Mortgage, dated as of the Third Amendment Effective Date, from the Borrower
to the Lender with respect to a Term Loan D Aircraft.
"Term Loan D Aircraft Engine": means each Aircraft Engine owned from
time to time by the Borrower and listed as a Term Loan D 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 D Borrowing Base": at any time, an amount equal to 80% (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 D Aircraft.
"Term Loan D Facility": at any time, the obligation of the Lender to
make Term Loan D in accordance with the provisions of this Agreement, which
shall not exceed an amount equal to $1,600,000.00 minus the aggregate
amount of repayments of principal then required to have been made in
accordance with Schedule 2.3C.
"Term Note D": a promissory note of the Borrower evidencing Term Loan
D, 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, the Term Loan C
Aircraft Engines, the Term Loan D Aircraft and the Term Loan D 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 Third Amendment, the Security Documents, each Consent and
Agreement, Term Note A, Term Note B, Term Note C, Term Note D, 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:
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""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 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, the Term Loan C
Facility (without regard to any Term Loan C borrowings made prior to or on
such date) and the Term Loan D Facility (without regard to any Term Loan D
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, the Term Loan C Borrowing Base and the Term Loan D 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, the Term Loan C Borrowing
Base and the Term Loan D 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, the Term Loan C Facility and the Term
Loan D 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,
Term Loan C and Term Loan D.
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, the Term Loan C Borrowing
Base, the Term Loan D Facility or the Term Loan D Borrowing Base)"
(b) Section 2.3 of the Existing Credit Agreement is hereby amended by
inserting the following as subsection (d) at the end of such Section:
"(d) 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 D
Aircraft or Term Loan D Aircraft Engines pursuant to Section 2.5(c) hereof,
"Term Loan D") on the Third Amendment Effective Date in the principal
amount of the lesser of (a) the Term
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Loan D Facility on such date and (b) the Term Loan D Borrowing Base on such
date. Term Loan D shall be dated the Third Amendment Effective Date,
stated to mature in the installments and amounts payable on the dates set
forth in Schedule 2.3D hereto, and bear interest for the period from the
Third 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 D 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 (d) at the
end of such Section:
"(d) At the request of the Borrower and after substitution of a Term
Loan D Aircraft or a Term Loan D Aircraft Engine (the "Substitute Term
Loan D Aircraft or Engine") for a Term Loan D Aircraft or a Term Loan D
Aircraft Engine which has been sold or has suffered an Event of Loss
within six months after repayment of Term Loan D 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) 80% (or such other percentage as the
Lender shall determine in its sole discretion) of the Forced Liquidation
Value of the Substitute Term Loan D Aircraft or Engine, less any applicable
Collateral Reserve, and (ii) the amount, if any, by which (A) $1,600,000.00
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 2.3D hereto
exceeds (B) the outstanding principal balance of Term Loan D 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 D for all purposes hereunder and shall
increase the Term Loan D Facility on a dollar-for-dollar basis. From and
after the making of such advance the outstanding principal balance of Term
Loan D 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."
4. 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
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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, then against the repayment of Term Loan C to the extent
that the outstanding principal amount of Term Loans C exceeds the Term Loan
C Borrowing Base, and then against the repayment of Term Loan D, 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, (iii) the excess, if any, of the Term Loan
C Borrowing Base over the outstanding principal amount of Term Loan C, and
(iv) the excess, if any, of the Term Loan D Borrowing Base over the
outstanding principal amount of Term Loan D, 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, (iii) the excess if any of the Term Loan B
Borrowing Base over the outstanding principal amount of Term Loan B, and
(iv) the excess if any of the Term Loan D Borrowing Base over the
outstanding principal amount of Term Loan D, the Borrower shall immediately
prepay Term Loan C in an amount equal to such deficiency.
(iv) 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 2.3D hereto, the outstanding principal amount of Term
Loan D exceeds the sum of (i) the Term Loan D Borrowing Base, (ii) the
excess if any of the Term Loan A Borrowing Base over the outstanding
principal amount of Term Loan A, (iii) the excess if any of the Term Loan B
Borrowing Base over the outstanding principal amount of Term Loan B, and
(iv) 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 D in an amount equal to such deficiency."
5. 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
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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"), (iv) a promissory note of the Borrower
evidencing Term Loan D of the Lender, in form and substance acceptable to
the Lender ("Term Note D"), and/or (v) a promissory note of the Borrower
evidencing the Revolver Advances of the Lender in form and substance
acceptable to the Lender (a "Revolver Note")."
6. 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, the Term Loan C
Borrowing Base and the Term Loan D 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), (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 and
(iv) in the case of the Term Loan D Borrowing Base, in connection with the
delivery of such certificate on the Third Amendment Effective Date and in
each case that the Term Loan D 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;"
7. 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.
8. 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.
9. Amendments to Schedules 2.3A, 2.3B and 2.3C. Schedules 2.3A, 2.3B and
2.3C are hereby amended to include Schedule 2.3D, which shall read as is set
forth on Schedule 2.3D 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 "Third 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 D Aircraft Chattel Mortgage;
(iii) the Sun Jet Aircraft Lease;
(iv) the Sun Jet Consent and Agreement;
(v) the Term Note D; 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 Third 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 Third 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 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 Third 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 Third Amendment Documents to which
the Borrower is a party, certified by the Secretary or an Assistant Secretary of
the Borrower as of the Third 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 Third Amendment Effective
Date, as to the incumbency and signature of the officer(s) of the Borrower
executing each Third 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 D 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 Third 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
Third 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, the Term Loan C Borrowing Base, and the Term Loan D Borrowing
Base, in each case as of the Business Day immediately preceding the Third
Amendment Effective Date, with appropriate insertions and dated the Third
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 D 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 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 D
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 Third Amendment
Effective Date, the Borrower shall pay to the Lender in immediately available
funds a fee equal to $16,000.00 (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 D.
(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 Third 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 D 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 Third 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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