Exhibit 10.7
Consent, Waiver and Forbearance Agreement No. 11 for
Lease Agreement and
Certain Other Operative Agreements
THIS CONSENT, WAIVER AND FORBEARANCE AGREEMENT NO. 11 (this "Consent
Agreement") is made and entered into as of the 10th day of September, 2001, by
and among AVIATION SALES COMPANY, a Delaware corporation ("Aviation Sales"), as
Construction Agent (the "Construction Agent"); AVIATION SALES COMPANY, as Lessee
(the "Lessee"); XXXXX FARGO BANK NORTHWEST, NATIONAL ASSOCIATION, a national
banking association, f/k/a First Security Bank, National Association, not
individually, except as expressly stated in the Operative Agreements, but solely
as Owner Trustee under the Aviation Sales Trust 1998-1 (the "Owner Trustee");
BANK OF AMERICA, N.A., successor to NationsBank, National Association ("Bank of
America"), as a Holder and as a Lender; BANK OF AMERICA, N.A., successor to
NationsBank, National Association, as Administrative Agent (the "Agent"); each
of the holders party to the Trust Agreement (defined below) (the "Holders");
each of the Lenders party to the Credit Agreement (defined below)(the
"Lenders"); and each of the Guarantors party to the Guaranty Agreement (defined
below).
W I T N E S S E T H:
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WHEREAS, the Construction Agent, the Lessee, the Owner Trustee, the Agent,
the Lenders and the Holders have entered into the Participation Agreement dated
as of December 17, 1998 (as amended, the "Participation Agreement"); and
WHEREAS, the Owner Trustee, the Lenders and the Agent have entered into the
Credit Agreement dated as of December 17, 1998 (as amended, the "Credit
Agreement"); and
WHEREAS, the Holders and the Owner Trustee have entered into the Amended
and Restated Trust Agreement dated as of December 17, 1998 (as amended, the
"Trust Agreement"); and
WHEREAS, the Owner Trustee and the Lessee have entered into the Lease
Agreement dated as of December 17, 1998 (as amended, the "Lease" or "Lease
Agreement"); and
WHEREAS, Aviation Sales, Subsidiaries of Aviation Sales, and the Agent have
entered into the respective Guaranty Agreements (Series A Obligations) dated as
of December 17, 1998, February 18, 2000, March 31, 2000 or May 31, 2000, as the
case may be, (collectively, the "Series A Guaranty Agreement"); and the
Subsidiaries of Aviation Sales and the Owner Trustee have entered into the
respective Guaranty Agreements (Lessee Obligations) dated as of December 17,
1998, February 18, 2000, March 31, 2000 or May 31, 2000, as the case may be,
(collectively, the "Lessee Guaranty Agreement", and collectively with the Series
A Guaranty Agreement and any other Guaranty Agreement (as defined in the
Participation Agreement), the "Guaranty Agreement" or "Guaranty"); and
WHEREAS, the Lessee has informed the Owner Trustee, the Holders, the Agent
and the Lenders that certain Events of Default have occurred and are continuing;
and
WHEREAS, the Lessee has requested that the Owner Trustee, the Holders, the
Agent and the Lenders forbear from exercising their rights and remedies with
respect to certain Events of Default as described herein and in the 2001
Forbearance Letter (as defined herein); and
WHEREAS, the Lessee has requested that the Owner Trustee, the Holders, the
Agent and the Lenders waive certain Events of Default as described herein; and
WHEREAS, the parties hereto desire to amend the Lease Agreement and certain
other Operative Agreements in the manner herein set forth;
NOW, THEREFORE, the Construction Agent, the Lessee, the Owner Trustee, the
Holders, the Agent and the Lenders do hereby agree as follows:
1. Definitions. The terms "Participation Agreement", "Lease" and "Lease
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Agreement" as used herein and in the Operative Agreements (as defined in the
Participation Agreement) shall mean such agreements as hereby amended and
modified, and as further amended, modified, supplemented or restated from time
to time in accordance with the terms thereof. Unless the context otherwise
requires, all terms used herein without definition shall have the definition
provided therefore in the Participation Agreement.
2. Letter of Credit. Aviation Sales, its Subsidiaries, the Owner Trustee,
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hereby agree to and acknowledge the following by their signature hereof:
Notwithstanding any provision contained in the Operative Documents and
whether or not any Event of Default has occurred or is continuing, in accordance
with the Credit Agreement and other Operative Documents, each of Aviation Sales
and the Owner Trustee hereby irrevocably authorizes the Agent:
(a) to draw the full amount of the Letter of Credit at any time (in
the Agent's sole discretion) (up to and including the expiration date set
forth in the Letter of Credit), and for any reason; and
(b) to apply (in such order as the Agent in its sole discretion shall
determine) the funds drawn by the Agent under the Letter of Credit to repay
or prepay (i) outstanding Loans, Holder Fundings, Property Costs, interest,
fees or Holder Yield, or (ii) any amounts that may be due and owning under
any Operative Agreement.
Aviation Sales, its Subsidiaries and the Owner Trustee hereby give notice
to the Agent, the Lenders and Holders, pursuant to Section 2.6(a) of the Credit
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Agreement and Section 3.4 of the Trust Agreement, that the Borrower shall prepay
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the Loans and Holder Fundings in an aggregate amount equal to the amount drawn
by the Agent under the Letter of Credit pursuant to this Section 2 (after
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deducting any amounts that the Agent may apply to other purposes in accordance
with Section 2(a) or (b) above). Such prepayment shall be accomplished by the
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Agent's application of such remaining proceeds of the Letter of Credit to the
Loans and Holder Fundings (in such ratio between Loans and Holder Fundings as
the Agent in its sole discretion
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shall determine), and such prepayment shall occur on the date (the "Prepayment
Date") that is the later of (y) two (2) Business Days after the date hereof or
(z) the date that the Agent draws on the Letter of Credit. Accordingly, such
prepayment shall be due and owing on the Prepayment Date.
3. Consent and Waiver. Effective upon the satisfaction of the conditions
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precedent set forth in Section 6 hereof, the Agent, the Owner Trustee, the
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Lenders and the Holders hereby consent to the extension of the Forbearance
Period (as defined in that certain letter dated August 16, 2001 (the "2001
Forbearance Letter") with respect to the forbearance of the Agent, the Owner
Trustee, the Lenders and the Holders from exercising rights and remedies with
respect to the Events of Default specifically identified in the 2001 Forbearance
Letter) until December 31, 2001, such extension subject to the conditions
attached hereto as Exhibit B (the "Extended Forbearance Period"); provided,
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however, that the existing Events of Default subject to the Extended Forbearance
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Period shall not be deemed cured (i) as a result of any waiver by (x) the
trustee for the Senior Subordinated Notes, (y) the holders of the Senior
Subordinated Notes or (z) the lenders under the Citicorp Loan Documents or (ii)
as a result of the payment of interest which was due on August 15, 2001 with
respect to the Senior Subordinated Notes; and such Events of Default shall
continue to exist during and after the Forbearance Period and the Extended
Forbearance Period whether or not the underlying defaults (including payment of
such interest) under the Senior Subordinated Notes, Subordinated Debt Indenture
and related documents or the Citicorp Loan Documents have been waived or cured.
Subject to the satisfaction of the conditions precedent set forth in
Section 5 hereof, the Agent, the Owner Trustee, the Lenders and the Holders
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hereby waive the rights and remedies of the Agent, the Owner Trustee, the
Lenders and the Holders arising due to the failure of Aviation Sales and its
Subsidiaries to deliver the quarterly Financial Statements and corresponding
Officer's Certificate for the period ended June 30, 2001, as and when required
by Section 28.1.1 of the Lease Agreement; provided that such Financial
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Statements are delivered by no later than September 14, 2001.
The consent and waiver contained in this Section 3 are granted only for the
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specific instances described herein and are not intended to create a course of
dealing or otherwise impair the future ability of the Lessor, the Agent, any
Lender or any Holder to declare an Event of Default or otherwise enforce the
terms of any Operative Agreement. Neither any such consent nor any such waiver
is intended to be nor shall it be construed to be a general waiver or alteration
of any of the terms or conditions of any Operative Agreement.
4. Representations, Warranties and Covenants. The Lessee and the
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Construction Agent hereby represent, warrant and covenant that:
(a) The representations and warranties made by the Lessee and the
Construction Agent in Section 7 of the Participation Agreement are true on
and as of the date set forth in such Section.
(b) The audited consolidated financial statements of each of the
Construction Agent and the Lessee as of December 31, 2000, copies of which
have been furnished to the Agent and the Owner Trustee, were prepared in
accordance with GAAP and fairly present the financial condition of each of
the Construction Agent and the Lessee and their
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Subsidiaries on a consolidated basis as of such date and their consolidated
results of operations for the fiscal year then ended. Neither Aviation
Sales nor any Guarantor or any Subsidiary of Aviation Sales has as of the
date any Accommodation Obligation, contingent liability or liability for
any taxes, long-term leases or commitments, not disclosed in writing to the
Agent, the Lenders and the Holders prior to the date hereof.
(c) The business and properties of the Lessee and the Construction
Agent and the Guarantors and the Subsidiaries of Aviation Sales are not,
and since the Initial Closing Date have not been, adversely affected in any
substantial way as the result of any fire, explosion, earthquake, accident,
strike, lockout, combination of workmen, flood, embargo, riot, activities
of armed forces, war or acts of God or the public enemy, or cancellation or
loss of any major contracts;
(d) Except as set forth in Section 3 of this Consent Agreement, no
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event has occurred and no condition exists on the date hereof which, after
giving effect to this Consent Agreement and the Citicorp Waiver (defined
below), constitutes or will constitute a Default or an Event of Default on
the part of the Lessee or the Construction Agent or any Guarantor or any
Subsidiary of Aviation Sales under the Participation Agreement or any other
Operative Agreement, either immediately or with the lapse of time or the
giving of notice, or both. Since December 31, 2000, no event has occurred
with respect to the Lessee, the Construction Agent or any Guarantor or any
Subsidiary of Aviation Sales which has resulted, or is reasonably likely to
result, in a Material Adverse Effect.
(e) There is as of the date hereof no action, suit, proceeding, claim,
investigation or arbitration before or by any Governmental Authority or
private arbitrator pending or, to the knowledge of Aviation Sales,
threatened against Aviation Sales, any Guarantor or any Subsidiary of
Aviation Sales or any of their respective Assets (i) challenging the
validity or the enforceability of any of the Operative Agreements, (ii)
which will, or is reasonably likely to, result in any Material Adverse
Effect, or (iii) under the Racketeering Influenced and Corrupt
Organizations Act or any similar federal or state statute or law under any
jurisdiction outside of the United States where such Person is a defendant
in a criminal indictment that provides for the forfeiture of assets to any
Governmental Authority as a criminal penalty. There is as of the date
hereof no material loss contingency within the meaning of GAAP which has
not been reflected in the Financial Statements of Aviation Sales and its
Subsidiaries. Neither Aviation Sales nor any Guarantor or any Subsidiary
of Aviation Sales is as of the date hereof subject to or in default with
respect to any final judgment, writ, injunction, restraining order or order
of any nature, decree, rule or regulation of any court or Governmental
Authority which will, or is reasonably likely to, result in a Material
Adverse Effect.
This Consent Agreement shall be deemed to be an Operative Agreement and any
violation of a covenant contained herein shall be a violation of an Operative
Agreement.
5. Conditions Precedent. The effectiveness of this Consent Agreement, and
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any consent or waiver contained herein, shall be subject to fulfillment of the
following conditions precedent:
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(a) The Agent shall have received on the date hereof, in form and
substance satisfactory to the Agent, the following:
(i) a fully-executed original of this Consent Agreement;
(ii) an executed waiver and forbearance extension of the
Existing Aviation Sales Credit Agreement (the "Citicorp Waiver") in
the form of Exhibit A attached hereto; and all conditions to the
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effectiveness of such waiver and forbearance extension shall have been
satisfied;
(iii) evidence of the payment of all fees and amounts set forth
in Exhibit C attached hereto;
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(iv) an opinion of outside counsel to the Lessee and the
Guarantors, addressed to the Agent, the Owner Trustee and the Lenders
and Holders, including without limitation (A) an opinion of such
counsel with respect to noncontravention of the Citicorp Loan
Documents and agreements under which the Senior Subordinated Notes
have been issued, by this Consent Agreement, and the instruments and
documents executed by the Lessee, Construction Agent and Guarantors in
connection herewith, and (b) an opinion to the effect that the
execution, delivery and performance of this Consent Agreement will not
affect the priority of any Lien in favor of the Owner Trustee or the
Agent (on behalf of itself, any Lender or any Holder) that exists
under the Operative Agreements (which opinion may be included in the
opinion referred to in clause (v)(A) above);
(v) a certificate of the Secretary or an Assistant Secretary of
each of the Lessee and each Guarantor in such form as is reasonably
acceptable to the Agent attaching and certifying as to (A) the
resolutions of the Board of Directors of Lessee or such Guarantor (as
the case may be) duly authorizing the execution, delivery and
performance by Lessee or such Guarantor (as the case may be) of this
Consent Agreement and each of the other Operative Agreements delivered
in connection with this Consent Agreement to which such Lessee or
Guarantor is or will be a party, (B) the fact that neither its
certificate of incorporation nor its bylaws have been changed from
the versions that were certified and delivered to the Agent on the
Initial Closing Date (or if they have been changed, such certificate
of incorporation or by-laws certified as of a recent date by the
Secretary of State of the State of its incorporation), and (C) the
incumbency and signature of persons authorized to execute and deliver
on its behalf this Consent Agreement and each of the other Operative
Agreements delivered in connection with this Consent Agreement to
which such Lessee or Guarantor is a party;
(vi) an original of that certain letter attached hereto as
Exhibit D, executed by Citicorp, Citibank and the requisite lenders
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under the Citicorp Loan Documents; and
(vi) any additional agreements, instruments or documents which
it may reasonably request in connection herewith;
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(b) The correctness in all material respects of the representations
and warranties of the Owner Trustee, Construction Agent and the Lessee
contained herein and in each of the Operative Agreements;
(c) No material adverse change shall have occurred in the business,
assets, management, operations, financial condition or prospects of
Aviation Sales or any Guarantor or any Subsidiary of Aviation Sales since
December 31, 2000;
(d) Except as described in Amendment Nos. 7-10 and amendment nos. 4-7
to the Existing Aviation Sales Credit Agreement or in this Consent
Agreement or the Citicorp Waiver, since December 31, 2000, no permit,
agreement, lease, or license which, in the judgment of the Agent, is
material to the business, operations or employee relations of Aviation
Sales or any Guarantor or any Subsidiary of Aviation Sales, including
without limitation, any agreement relating to the Existing Aviation Sales
Credit Agreement or the Senior Subordinated Notes (as defined in the
Existing Aviation Sales Credit Agreement), shall have been terminated,
modified, revoked, breached, or declared to be in default, or if breached
or declared to be in default during such period, such breach or default
shall have been cured or waived on terms satisfactory to the Agent and
Lenders;
(e) Lenders and Holders shall have reviewed all litigation pending or
threatened against Aviation Sales or any Guarantor or any Subsidiary of
Aviation Sales and determined to their satisfaction that no Material
Adverse Effect will, or is reasonably likely to, result from the existence
thereof; and
(f) None of the members of Aviation Sales' Board of Directors as of
December 31, 2000 (except Xxxx Xxxxx, Xxxxxx Xxxxxx and Xxxxxx Xxxxx),
shall have ceased acting as members of such Board of Directors.
6. Release.
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(a) Aviation Sales and its Subsidiaries 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 their or the Owner Trustee's respective liability to pay
or perform any obligations pursuant to any of the Operative Agreements or
any other documents which evidence or secure any obligations owed under any
Operative Agreement. In consideration for the execution of this Consent
Agreement, each of Aviation Sales and each of its Subsidiaries hereby
releases and forever discharges, Bank of America, the Agent, the Lenders,
the Holders and the Owner Trustee 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 the Operative Agreements, any
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Property, any obligations due under any of the Operative Agreements and
this Consent Agreement, 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
Aviation Sales or any of its Subsidiaries) the deposit relationships,
between Aviation Sales or its Subsidiaries, and Bank of America, the Agent,
the Lenders, the Holders and the Owner Trustee, including the
administration, collateralization and funding thereof. Each of Aviation
Sales 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 them, alleging any such Release Claim or otherwise
arising in connection with any such Release Claim.
(b) 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 Aviation Sales
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 Aviation Sales 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,
Aviation Sales 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
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6. Aviation Sales and its Subsidiaries hereby explicitly waive the
-
benefits of any common law or statutory rule with respect to the release of
such Release Claims.
(c) The acceptance and delivery of this Consent Agreement by the Agent
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 6.
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(d) Each of Aviation Sales 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 6; (ii) such party has had advice of counsel of its own
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choosing in negotiations for and the preparation of this Consent Agreement;
and (iii) such party is fully aware of the effect of releases such as that
contained in this Section 6.
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7. Entire Agreement. This Consent Agreement sets forth the entire
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understanding and agreement of the parties hereto in relation to the subject
matter hereof and supersedes any prior negotiations and agreements among the
parties relative to such subject matter. No promise, conditions, representation
or warranty, express or implied, not herein set forth shall bind any party
hereto, and no one of them has relied on any such promise, condition,
representation or warranty. Each of the parties hereto acknowledges that,
except as in this Consent Agreement
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otherwise expressly stated, no representations, warranties or commitments,
express or implied, have been made by any other party to the other. None of the
terms or conditions of this Consent Agreement may be changed, modified, waived
or canceled orally or otherwise, except by writing, signed by all the parties
hereto, specifying such change, modification, waiver or cancellation of such
terms or conditions, or of any proceeding or succeeding breach thereof.
8. Full Force and Effect of Operative Agreements. Except as hereby
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specifically amended, modified or supplemented, the Participation Agreement, the
Lease and all of the other Operative Agreements are hereby confirmed and
ratified in all respects and shall remain in full force and effect according to
their respective terms.
9. Counterparts. This Consent Agreement may be executed in one or more
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counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
[Remainder of page intentionally left blank.]
IN WITNESS WHEREOF, the parties hereto have caused this Consent Agreement
to be duly executed by their duly authorized officers, all as of the day and
year first above written.
AVIATION SALES COMPANY,
as Construction Agent
By: /s/
---------------------------------------
Name:_____________________________________
Title:____________________________________
AVIATION SALES COMPANY,
as Lessee
By: /s/
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Name:_____________________________________
Title:____________________________________
XXXXX FARGO BANK NORTHWEST, NATIONAL
ASSOCIATION
not individually, except as expressly stated under
the Operative Agreements, but solely as Owner
Trustee under the Aviation Sales Trust 1998-1
By: /s/
---------------------------------------
Name:_____________________________________
Title:____________________________________
BANK OF AMERICA, N.A., as a Holder and as
a Lender
By: /s/
---------------------------------------
Name:_____________________________________
Title:____________________________________
BANK OF AMERICA, N.A., as Administrative
Agent
By: /s/
---------------------------------------
Name:_____________________________________
Title:____________________________________
SIGNATURE PAGE 1 OF 3
JOINDER BY GUARANTORS
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The undersigned Guarantors hereby join in and consent to this Consent Agreement.
AVIATION SALES COMPANY
AVS/M-1, INC. (formerly AVIATION SALES
MANUFACTURING COMPANY)
AVIATION SALES PROPERTY
MANAGEMENT CORP.
AVIATION SALES FINANCE COMPANY
TIMCO ENGINE CENTER, INC.
AVS/M-2, INC (formerly AVS/XXXXX-XXXXX
MACHINE COMPANY
AVS/M-3, INC. (formerly APEX MANUFACTURING, INC.)
AEROCELL STRUCTURES, INC.
AVIATION SALES DISTRIBUTION
SERVICES COMPANY
AVIATION SALES LEASING COMPANY
WHITEHALL CORPORATION
TRIAD INTERNATIONAL MAINTENANCE
CORPORATION (successor in interest to Aero
Corporation and Aero Corp Macon, Inc.)
AVIATION SALES MAINTENANCE, REPAIR &
OVERHAUL COMPANY
CARIBE AVIATION, INC.
AIRCRAFT INTERIOR DESIGN, INC.
AERO HUSHKIT CORPORATION
HYDROSCIENCE, INC.
TIMCO ENGINEERED SYSTEMS, INC.
By: /s/
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Name:__________________________________________
Title:________________ of each of the foregoing
Guarantors
AVSRE, L.P.
By: Aviation SalesProperty Management Corp.,
its general partner
By: /s/
--------------------------------------
Name:____________________________________
Title:___________________________________
SIGNATURE PAGE 2 OF 3
AVIATION SALES SPS I, INC.
By: /s/
-------------------------------------
Name:___________________________________
Title:__________________________________
SIGNATURE PAGE 3 OF 3
