Exhibit 10.17
INTERCREDITOR AGREEMENT
THIS INTERCREDITOR AGREEMENT (the "Agreement") is entered into
as of the 12th day of July, 2002 by and among CITICORP USA, INC., a Delaware
corporation, in its capacity as "Agent" (the "Agent") under that certain Fifth
Amended and Restated Credit Agreement of even date herewith (as amended and more
particularly described below and herein referred to as the "Credit Agreement")
and under each of (i) that certain Collateral Documents Amendment dated as of
February 18, 2000 (as more particularly described below and herein referred to
as the "Collateral Documents Amendment") and (ii) that certain Second Collateral
Documents Amendment dated as of February 14, 2001 (as more particularly
described below and herein referred to as the "BofA Collateral Documents
Amendment"), CITICORP USA, INC., a Delaware corporation, as holder of the
Warrant (as more particularly described below) ("CUSA"), BANK OF AMERICA, N.A.,
as holder of the BofA Note (as more particularly described below) ("BofA"), and
XXXXXX XXXXXXX and XXXXXX X. XXXXXXX (collectively referred to herein as "BQ"),
as holders of that certain Term Loan Note of even date herewith (as more
particularly described below and herein referred to as the "Xxxxxxx Note"), XXX
X. XXXXXXX ("Xxxxxxx"), LJH, LTD., a Texas limited partnership ("Xxxxxx"), and
XXXXX INVESTMENTS, INC., a Texas corporation ("Xxxxx"). Capitalized terms used
herein which are defined in the Credit Agreement shall have the meanings herein
as ascribed thereto in the Credit Agreement.
W I T N E S S E T H:
WHEREAS, the Agent, AEROCELL STRUCTURES, INC., an Arkansas
corporation, TRIAD INTERNATIONAL MAINTENANCE CORPORATION, a Delaware
corporation, AIRCRAFT INTERIOR DESIGN, INC., a Florida corporation, and TIMCO
ENGINE CENTER, INC., a Delaware corporation, (the "Borrowers"), TIMCO Aviation
Services, Inc., a Delaware corporation ("AVS"), Citibank, N.A., as Issuing Bank,
and certain financial institutions a party thereto as Lenders have entered into
that certain Fifth Amended and Restated Credit Agreement of even date herewith
(the "Credit Agreement"), pursuant to which certain loans and other financial
accommodations have heretofore been, and will hereafter be, made to the
Borrowers by the Lenders and Issuing Bank;
WHEREAS, the Agent, the Borrowers, AVS and certain of AVS'
subsidiaries (the Borrowers, AVS and such subsidiaries of AVS being herein
referred to as the "Grantors") have entered into certain agreements pursuant to
which the Obligations and certain payment and performance guarantees with
respect to such Obligations and Indebtedness made by AVS and such subsidiaries
of AVS (the "Credit Facility Guarantees") are secured by security interests in
the Collateral pursuant to various security documents (the "Collateral
Documents");
WHEREAS, CUSA is the holder of a certain Common Stock Warrant
Certificate issued February 18, 2000 by AVS, as amended by Amendment No. 1 to
Common Stock Warrant
Certificate dated as of May 31, 2000, and Amendment No. 2 to
Common Stock Warrant Certificate of even date herewith (the "Warrant");
WHEREAS, the Grantors, the Agent and CUSA are parties to that
certain Collateral Documents Amendment dated as of February 18, 2000 (the
"Collateral Documents Amendment"), pursuant to which, inter alia, the Collateral
Documents were amended to provide for the security interests granted thereunder
to secure, inter alia, the Indebtedness of AVS under the Warrant, as one of the
agreements executed and delivered in connection with a certain promissory note
heretofore payable by certain of the Grantors to CUSA;
WHEREAS, BofA has heretofore made a certain loan to, inter
alia, the Borrowers and the outstanding principal balance of such loan has been
re-evidenced by (i) that certain Replacement Term Loan Note in the principal
amount of $5,000,000 of even date herewith and (ii) that certain Replacement
Term Loan Note in the principal amount of $2,500,000 of even date herewith (such
Replacement Term Loan Notes being collectively referred to as the "BofA Note"),
which loan is secured pursuant to the terms of that certain Second Collateral
Documents Amendment dated as of February 14, 2001 (the "BofA Collateral
Documents Amendment"), pursuant to which, inter alia, the Collateral Documents
were further amended to provide for the security interests granted thereunder to
secure all of the Indebtedness of the Grantors under and with respect to such
loan, as re-evidenced by the BofA Note;
WHEREAS, each of the Credit Agreement, the Collateral
Documents, the Warrant, the Collateral Documents Amendment, the BofA Note, and
the BofA Collateral Documents Amendment continue in full force and effect as of
the date of this Agreement and the agreements made thereunder have been
reaffirmed;
WHEREAS, the Borrowers have executed that certain Term Loan
Note of even date herewith in the principal amount of $1,000,000, a copy of
which is attached hereto as Exhibit A-1 and made a part hereof (the "Xxxxxxx
Note") and the Guarantors (as defined in the Credit Agreement) have executed
that certain Guaranty of even date herewith in respect of the Xxxxxxx, a copy of
which is attached hereto as Exhibit A-2 and made a part hereof (the "Xxxxxxx
Guaranty");
WHEREAS, Xxxxxxx, Xxxxxx and Xxxxx have guaranteed the payment
and performance of certain of the Indebtedness evidenced by the BofA Note
pursuant to certain agreements executed and delivered by them, copies of which
are attached hereto as Exhibit B and made a part hereof (the "Shareholder
Guarantees");
WHEREAS, the Grantors, BQ, Xxxxxxx, Xxxxxx and Xxxxx are
parties to that certain Security Agreement of even date herewith, a copy of
which is attached hereto as Exhibit C and made a part hereof (the "Shareholder
Security Agreement") pursuant to which security interests have been granted to
secure the Indebtedness of the Grantors under and with respect to (i) the
Xxxxxxx Note and (ii) in the event that any of Xxxxxxx, Xxxxxx and Xxxxx are
subrogated to the rights of BofA with respect to Indebtedness evidenced by the
BofA Note by virtue of the performance of their obligations under the
Shareholder Guarantees, their resultant claims against the Grantors; and
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WHEREAS, the Grantors have requested that the Agent, Lenders,
Issuing Bank, CUSA, and BofA consent to the grant of the Liens evidenced by the
Shareholder Security Agreement and, as a condition to such consent, the Agent,
Lenders, Issuing Bank, CUSA and BofA have required that BQ, Xxxxxxx, Xxxxxx and
Xxxxx enter into this Agreement to set forth certain agreements with respect to
the rights and obligations of the Agent (on behalf of the Holders), CUSA, BofA,
BQ, Xxxxxxx, Xxxxxx and Xxxxx under the Credit Agreement, the Collateral
Documents, the Collateral Documents Amendment, BofA Note, the BofA Collateral
Documents Amendment, the Xxxxxxx Note, any claims of Sanders, Harber, or Xxxxx
arising by right of subrogation to the claims of BofA under the BofA Note, and
the Shareholder Security Agreement;
NOW, THEREFORE, the Agent, CUSA, BofA, BQ, Xxxxxxx, Xxxxxx and
Xxxxx hereby agree as follows:
SECTION 1. Defined Terms. As used in this Agreement, the
capitalized terms defined in the recitals hereto shall have the meanings
specified therein and the following terms shall have the meanings set forth
below:
"BofA Term Note Debt" means the Indebtedness of the Grantors
arising under the BofA Note and the BofA Guaranty.
"BofA Term Note Debt Documents" means the BofA Note, the BofA
Guaranty and the BofA Collateral Documents Amendment.
"Code" means the Uniform Commercial Code as in effect in the
State of New York.
"Collateral" means all of the property and assets (real,
personal, tangible and intangible and whether now or hereafter existing or
arising) and interests in such property and assets of the Grantors and shall be
deemed to include, without limitation, all payments and distributions of assets
of any Grantor, whether in cash or by distribution of any security, instrument
or proceeds from any assets of any Grantor, and proceeds of all extensions of
credit made to or for the benefit of the Grantors under the terms of the Loan
Documents.
"Loan Documents" shall mean all of the "Loan Documents", as
defined in the Credit Agreement, together with the Warrant.
"Permitted Payment" means (i) monthly interest payments under
the terms of the BQ Note, as in effect on the date hereof or modified with the
consent of the Agent, Requisite Lenders and CUSA and (ii) payments from proceeds
of the transaction described on Schedule 10.02-E to the Credit Agreement, a copy
of which is attached hereto as Exhibit D and made a part hereof, as permitted by
Section 4.01(b)(v) of the Credit Agreement; provided that (i) such payments are
payable and are paid no earlier than one (1) Business Day prior to the date when
the payments are due and (ii) no Potential Event of Default or Event of Default
shall have occurred and be continuing or would result after giving effect to any
such payment.
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"Xxxxxxx Term Note Debt" means the Indebtedness of the
Grantors arising under the Xxxxxxx Note and the Xxxxxxx Guaranty.
"Satisfaction of the Obligations" means (i) all of the
Obligations, Supplemental Term Loan Liabilities, and BofA Term Note Debt shall
have been paid in full in cash, (ii) all financing arrangements and
accommodations among the Holders and the Grantors shall have been terminated,
and (iii) the Holders have no further obligation to make loans, financial
accommodations or advance funds which would constitute Obligations to any of the
Borrowers.
"Shareholder Debt Documents" means the Xxxxxxx Note, the
Xxxxxxx Guaranty and the Shareholder Security Agreement.
"Shareholder Subrogation Claims" means the claims against the
Grantors, if any, of Xxxxxxx, Xxxxxx and Xxxxx arising in the event any of
Xxxxxxx, Xxxxxx and Xxxxx are subrogated to the rights of BofA with respect to
Indebtedness evidenced by the BofA Note by virtue of the performance of their
obligations under the Shareholder Guarantees.
"Supplemental Term Loan Liabilities" means all Indebtedness
evidenced by the Warrant.
SECTION 2. Reaffirmation of Lien Priorities. Each of BQ,
Xxxxxxx, Xxxxxx and Xxxxx acknowledges and agrees that the Agent, (i) for the
benefit of itself, the other Holders and CUSA, has been granted a first priority
lien and security interest in all of the Collateral to secure the Obligations
and the Supplemental Term Loan Liabilities and (ii) for the benefit of BofA, has
been granted a second priority lien and security interest in the Collateral to
secure the BofA Term Note Debt. The Agent and BofA acknowledge and agree that a
lien and security interest in the Collateral has been, or may hereafter be,
granted to BQ, Xxxxxxx, Xxxxxx and Xxxxx, as permitted by the terms of the
Credit Agreement, pursuant to the terms of the Shareholder Security Agreement
and other agreements to secure the indebtedness and obligations of the Grantors
to BQ under and with respect to the Xxxxxxx Term Note Debt and to Xxxxxxx,
Xxxxxx and Xxxxx with respect to the Shareholder Subrogation Claims, which lien
and security interest is (or, when created, shall be) junior and subordinate to
both (a) that securing the Obligations and Supplemental Term Loan Liabilities as
aforesaid and (b) that securing the BofA Term Note Debt . Each of BQ, Xxxxxxx,
Xxxxxx and Xxxxx hereby acknowledges and agrees all liens and security interests
of BQ, Xxxxxxx, Xxxxxx and Xxxxx, whether now or hereafter existing or arising,
in any of the Collateral shall be and hereby are subordinated to the rights and
interests of the Agent (for the benefit of itself, the other Holders, CUSA and
BofA) in the Collateral irrespective of the time or order of attachment or
perfection of any liens or security interests, irrespective of the time or order
of filing of any financing statement or other document, and irrespective of any
statute, rule, law, or court decision to the contrary. None of BQ, Xxxxxxx,
Xxxxxx or Xxxxx shall have any right to possession of any of the Collateral or
any proceeds thereof, or to foreclose upon any of the Collateral or any proceeds
thereof, whether by judicial action or otherwise, unless and until Satisfaction
of the Obligations has occurred.
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SECTION 3. Provisions in Furtherance of Lien Priorities (a) In
the event before Satisfaction of the Obligations, at the request of any Grantor
in connection with the sale or other disposition of the Collateral for fair
value or in accordance with the provisions of the Loan Documents, the Agent
releases any of the Collateral which constitutes part or all of the security for
the Xxxxxxx Term Note Debt and/or the Shareholder Subrogation Claims, BQ,
Xxxxxxx, Xxxxxx and Xxxxx, as applicable, shall thereupon execute and deliver to
the Agent such termination statements and releases as the Agent shall request to
release BQ's, Xxxxxxx', Xxxxxx'x and James's respective Liens against such
property of a Grantor.
(b) Upon any distribution, division, or application, partial or
complete, voluntary or involuntary, by operation of law or otherwise, of all or
any part of any of the Collateral which is made upon or in connection with any
dissolution, recapitalization, distribution, winding up, liquidation,
arrangements, receivership, or reorganization of any Grantor or any other
Person, or upon any assignment of the Collateral for the benefit of creditors or
any other marshaling of the Collateral and/or liabilities of such Grantor or
otherwise, any payment, dividend or distribution of any kind (whether in cash,
securities or other property) other than Permitted Payments, and proceeds of any
sale of all or any part of the Collateral, which would otherwise be payable or
deliverable with respect to the Xxxxxxx Term Note Debt or Shareholder
Subrogation Claims, shall be paid or delivered directly to the Agent for
application (in the case of cash) to, or as collateral (in the case of
securities or other property) for, the Obligations and Supplemental Term Loan
Liabilities, until paid in full in cash, with any balance being available for
delivery to BofA for application to the BofA Term Note Debt until paid in full
in cash.
(c) In the event that any payment or payments made to (i) any Holder or
CUSA with respect to any of the Obligations or Supplemental Term Loan
Liabilities or otherwise made to the Agent for the benefit of the Holders or
CUSA pursuant to the Loan Documents and/or this Agreement or (ii) BofA with
respect to the BofA Term Note Debt; or any part thereof, are subsequently
invalidated, declared to be fraudulent or preferential, set aside or are
required to be repaid to any trustee, receiver or any other Person under any
bankruptcy statute, state or federal law, common law or equitable cause, then
(A) to the extent of such payment or payments, the obligations or part thereof
intended to be satisfied shall be revived and continued as part of the
Obligations, Supplemental Term Loan Liabilities or BofA Term Note Debt, as
applicable, in full force and effect, as if such payment or payments had not
been made and (ii) the Agent, the other Holders, CUSA, and BofA, as applicable,
shall continue to have all rights and benefits under the Loan Documents, the
BofA Term Note Debt Documents, and this Agreement respecting the Collateral
related to such revived obligations which shall constitute Obligations,
Supplemental Term Loan Liabilities, or BofA Term Note Debt.
(d) Notwithstanding anything herein or elsewhere to the contrary, (i)
until payment in full of the Obligations and the Supplemental Term Loan
Liabilities, no Grantor may use the Collateral or any part thereof, directly or
indirectly, to acquire, purchase, repurchase, redeem, or otherwise make any
prepayment (mandatory or voluntary) of any principal, premium, if any, or
interest on any of the Xxxxxxx Term Note Debt or Shareholder Subrogation Claims
without the prior written consent of the Agent, the other Holders and CUSA,
which consent shall not be unreasonably withheld; and (ii) after payment in full
of the Obligations and the Supplemental Term Loan Liabilities and until payment
in full of the BofA Term Note Debt, no Grantor may use the Collateral or any
part thereof, directly or indirectly, to acquire, purchase, repurchase,
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redeem, or otherwise make any prepayment (mandatory or voluntary) of any
principal, premium, if any, or interest on any of the Xxxxxxx Term Note Debt or
Shareholder Subrogation Claims without the prior written consent of BofA, which
consent shall not be unreasonably withheld.
(e) Notwithstanding anything herein or in any of the Xxxxxxx Term Note
Debt Documents or Shareholder Debt Documents to the contrary, BQ agrees that,
until Satisfaction of the Obligations, it will not exercise any rights or
remedies against any of the Collateral as a result of any default with respect
to the Xxxxxxx Term Note Debt or Shareholder Subrogation Claims, or otherwise,
including, without limitation, as a result of any Grantor's failure to make a
Permitted Payment.
(f) Except for Permitted Payments received by BQ, Sanders, Harber, or
Xxxxx as and when permitted under this Agreement, should any payment or
distribution of Collateral be received directly or indirectly by BQ, Xxxxxxx,
Xxxxxx or Xxxxx from any Grantor upon or with respect to the Xxxxxxx Term Note
Debt or Shareholder Subrogation Claims or any other obligations of any Grantor
to BQ, Xxxxxxx, Xxxxxx or Xxxxx secured by the Collateral prior to Satisfaction
of the Obligations, the respective recipient thereof shall receive and hold the
same in trust, as trustee, for the benefit of the Holders, CUSA and BofA, and
shall forthwith deliver the same to the Agent, for the benefit of the Holders,
CUSA and BofA, in precisely the form received (except for the endorsement or
assignment of such recipient where necessary), for application in accordance
with the terms of the Loan Documents (in the case of cash) or to be held as part
of the Collateral for (in the case of securities or other property) any of the
Obligations and Supplemental Term Loan Liabilities until paid in full, with any
balance being delivered to BofA, in precisely the form received (except for the
endorsement or assignment of such recipient where necessary), for application to
the BofA Term Note Debt, in each instance, due or not due, and, until so
delivered, the same shall be held in trust by such recipient as the property of
the Agent for the benefit of the Holders, CUSA, and BofA. In the event of the
failure of BQ, Xxxxxxx, Xxxxxx or Xxxxx, as applicable, to make any such
endorsement or assignment to the Agent, the Agent, or any of its officers or
employees, is hereby irrevocably authorized to make the same. Notwithstanding
the foregoing, unless BQ, Xxxxxxx, Xxxxxx or Xxxxx, as applicable, has actual
knowledge that a payment purportedly made as a Permitted Payment hereunder was
not in fact a Permitted Payment or shall have received notice from a Grantor or
the Agent of the existence of any condition which would prohibit the receipt of
such payment as a purportedly Permitted Payment by BQ, Xxxxxxx, Xxxxxx or Xxxxx
hereunder within one year following the date any payment purportedly made as a
Permitted Payment is received, such recipient shall not be required to deliver
the proceeds of such purportedly Permitted Payment to the Agent.
(g) In any action or proceeding of the type referenced in clause (b)
above, the Agent (or BofA to the extent the Obligations and Supplemental Term
Loan Liabilities have then been paid in full, in cash) is hereby irrevocably
authorized and empowered, in the Agent's (or BofA's, if then applicable as
aforesaid) discretion, to file, make and present for and on behalf of BQ,
Xxxxxxx, Xxxxxx and/or Xxxxx such proofs of claims against any Grantor, if such
Person has not filed the same 10 days before any applicable bar date, on account
of all of any portion of the QuevedoTerm Note Debt or Shareholder Subrogation
Claims and to vote such proofs of claims in issues of the Collateral in any such
proceeding and to receive and collect any and all dividends or other payments or
disbursements made in respect of Collateral in whatever form the same may
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be paid or issued and to apply the same on account of any of the Obligations,
the Supplemental Term Loan Liabilities or BofA Term Note Debt. In voting such
proofs of claim in any proceeding, the Agent (or BofA, if then applicable as
aforesaid) may act in a manner consistent with the sole interests of the
Holders, CUSA and/or BofA in respect of Collateral and shall have no duty to
take any action to maximize any recovery of BQ, Xxxxxxx, Xxxxxx or Xxxxx with
respect to its claim. Each of BQ, Xxxxxxx, Xxxxxx and Xxxxx authorizes the Agent
(or BofA, if then applicable as aforesaid) to sell such property to such buyers
in accordance with law on such terms as the Agent (or BofA, if then applicable
as aforesaid) shall determine. Each of BQ, Xxxxxxx, Xxxxxx and Xxxxx will
execute and deliver to the Agent (or BofA, if then applicable as aforesaid) such
powers of attorney, assignments and other instruments or documents, including
notes and stock certificates (together with such assignments or endorsements as
the Agent (or BofA, if then applicable as aforesaid) shall deem necessary), as
may be requested by the Agent (or BofA, if then applicable as aforesaid) in
order to enable the Agent (or BofA, if then applicable as aforesaid) to enforce
any and all claims upon the Collateral deliverable at any time upon or with
respect to the Xxxxxxx Term Note Debt or Shareholder Subrogation Claims, all for
the Holders', CUSA's and/or BofA's own benefit for application in accordance
with the terms hereof.
SECTION 4. Bankruptcy Issues. Each of BQ, Xxxxxxx, Xxxxxx and
Xxxxx agrees that the Agent, the other Holders, CUSA, or BofA may consent to the
use of cash collateral or provide financing to any Grantor on such terms and
conditions and in such amounts as such Person, in its sole discretion, and the
applicable court may decide and that, in connection with such cash collateral
usage or such financing. Subject to applicable court orders, each of BQ,
Xxxxxxx, Xxxxxx and Xxxxx agrees that each Grantor (or a trustee appointed for
the estate of any or all of them) may grant Liens to the Agent, other Holders,
CUSA or BofA upon all assets of such Grantor, as applicable, which Liens (i)
shall secure payment of all Obligations, the Supplemental Term Loan Liabilities,
or the BofA Term Note Debt, as applicable (whether such Obligations,
Supplemental Term Loan Liabilities or BofA Term Note Debt arose prior to the
filing of the petition for relief or arise thereafter); and (ii) shall be
superior in priority to the Liens, if any, held by BQ, Xxxxxxx, Xxxxxx or Xxxxx
on the assets of such Grantor. All allocations of payments constituting
Collateral between (a) BQ, Xxxxxxx, Xxxxxx and Xxxxx and (b) the Holders, and/or
CUSA, and/or BofA shall, subject to any court order, continue to be made after
the filing of a petition under the Bankruptcy Code on the same basis that the
payments were to be allocated prior to the date of such filing. Each of BQ,
Xxxxxxx, Xxxxxx and Xxxxx agrees that he/it will not object to or oppose a sale
or other disposition of any assets securing the Obligations, Supplemental Term
Loan Liabilities, or BofA Term Note Debt (or any portion thereof) free and clear
of Liens or other claims of BQ, Xxxxxxx, Xxxxxx and Xxxxx under Section 363 of
the Bankruptcy Code or any other provision of the Bankruptcy Code if the Agent,
the other Holders, CUSA and, if applicable, BofA and the applicable court have
consented to such sale or disposition of such assets. For purposes of
Satisfaction of the Obligations and applying payments or proceeds of Collateral
to the Obligations, Supplemental Term Loan Liabilities and BofA Term Note Debt,
the Obligations, Supplemental Term Loan Liabilities and BofA Term Note Debt
shall be deemed to include, without limitation, all interest, fees, and other
amounts to be paid on any of the Obligations, Supplemental Term Loan Liabilities
or BofA Term Note Debt pursuant to the terms of any Loan Document or the BofA
Term Note Debt Documents regardless
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of whether any such interest, fees or other amounts are or would be recognized
or allowed as a claim in any bankruptcy or similar proceeding.
SECTION 5. Waivers of BQ, Xxxxxxx, Xxxxxx and Xxxxx. (a) All
of the Obligations, Supplemental Term Loan Liabilities, and BofA Term Note Debt
shall be deemed to have been made or incurred in reliance upon this Agreement.
Each of BQ, Xxxxxxx, Xxxxxx and Xxxxx expressly waives (i) all notice of the
acceptance by the Agent, the other Holders, CUSA and BofA of the lien
subordination and other provisions of this Agreement, (ii) all other notices not
specifically required pursuant to the terms of this Agreement whatsoever, and
(iii) reliance by the Agent, the other Holders, CUSA and BofA upon the lien
subordination and other agreements as herein provided. Each of BQ, Xxxxxxx,
Xxxxxx and Xxxxx agrees that it will not interfere with or in any manner oppose
a disposition of any assets securing the Obligations, Supplemental Term Loan
Liabilities or BofA Term Note Debt by the Agent, other Holders, CUSA or BofA.
Each of BQ, Xxxxxxx, Xxxxxx and Xxxxx agrees that none of the Holders, CUSA or
BofA has made any warranties or representations with respect to the due
execution, legality, validity, completeness or enforceability of the Loan
Documents or BofA Term Note Debt Documents, or the collectability of the
Obligations, Supplemental Term Loan Liabilities or BofA Term Note Debt, that the
Holders shall be entitled to manage and supervise the Obligations, that CUSA
shall be entitled to manage and supervise the Supplemental Term Loan Liabilities
and that BofA shall be entitled to manage and supervise the BofA Term Note Debt,
in each instance, in accordance therewith, modified from time to time as the
Holders, CUSA or BofA, as applicable, deem appropriate under the circumstances,
and in accordance with applicable law, without regard to the existence of any
rights that BQ, Xxxxxxx, Xxxxxx and Xxxxx xxx now or hereafter have in or to any
of the assets of any Grantor, and that none of the Holders, CUSA or BofA shall
have any liability to any of BQ, Xxxxxxx, Xxxxxx or Xxxxx for, and each of BQ,
Xxxxxxx, Xxxxxx and Xxxxx waives any claim which he/it may now or hereafter have
against, any Holder, CUSA or BofA arising out of any and all actions which such
Holder, CUSA, BofA or the Agent, on its behalf, in good faith, takes or omits to
take (including, without limitation, actions with respect to the creation,
perfection or continuation of liens or security interests in the Collateral and
other security for the Obligations, Supplemental Term Loan Liabilities and BofA
Term Note Debt, actions with respect to the occurrence of an Event of Default or
Potential Event of Default, actions with respect to the foreclosure upon, sale,
release, or depreciation of, or failure to realize upon, any of the Collateral
and actions with respect to the collection of any claim for all or any part of
the Obligations, Supplemental Term Loan Liabilities or BofA Term Note Debt from
any account debtor, guarantor or any other party) with respect to the Loan
Documents, Warrant, BofA Term Note Debt Documents, or any other agreement
related thereto, or to the collection of the Obligations, Supplemental Term Loan
Liabilities, or BofA Term Note Debt, or the valuation, use, protection or
release of the Collateral and/or other security for the Obligations,
Supplemental Term Loan Liabilities and BofA Term Note Debt.
(b) Each of BQ, Xxxxxxx, Xxxxxx and Xxxxx agrees that (i)
he/it will not take or cause to be taken any action, the purpose or effect of
which is to make any security interest securing the Xxxxxxx Term Note Debt or
Shareholder Subrogation Claims pari passu with, or to give BQ, Xxxxxxx, Xxxxxx
or Xxxxx any preference or priority relative to, any security interest securing
the Obligations, Supplemental Term Loan Liabilities or BofA Term Note Debt; (ii)
he/it will not interfere with, hinder or delay, in any manner, whether by
judicial proceedings or
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otherwise, any sale, transfer or other disposition of the Collateral by the
Agent, any other Holder, CUSA or BofA, or any action taken by or on behalf of
the Agent, any other Holder, CUSA or BofA permitted to be taken by it pursuant
to the Loan Documents or BofA Term Note Debt Documents; (iii) he/it will have no
right to (A) direct the Agent, any other Holder, CUSA or BofA to exercise any
right, remedy or power with respect to the Collateral or pursuant to the Loan
Documents or BofA Term Note Debt Documents or (B) consent to the exercise by the
Agent, any other Holder, CUSA or BofA of any right, remedy or power with respect
to the Collateral or pursuant to the Loan Documents or BofA Term Note Debt
Documents; (iv) he/it will not institute any suit or assert in any suit,
Bankruptcy Proceeding or other proceeding any claim against the Agent, any other
Holder, CUSA or BofA seeking damages from or other relief by way of specific
performance, instructions or otherwise, with respect to, and none of the Agent,
any other Holder, CUSA or BofA shall be liable for, any action taken or omitted
to be taken by the Agent, such other Holder, CUSA or BofA with respect to the
Collateral or pursuant to the Loan Documents or BofA Term Note Debt Documents;
(v) until the Satisfaction of the Obligations, he/it will not make any judicial
or non-judicial claim or demand or commence any judicial or non-judicial
proceedings against any Grantor under or with respect to the Collateral
Documents, the BofA Collateral Documents Amendment, or the Shareholder Security
Agreement seeking payment or damages from or other relief by way of specific
performance, instructions, or otherwise under or with respect to the Collateral
Documents, BofA Collateral Documents Amendment, or Shareholder Security
Agreement (other than the filing of a proof of claim as and to the extent
permitted herein) or exercise any right, remedy or power under or with respect
to, or otherwise take any action to enforce, other than filing of a proof of
claim as and to the extent permitted herein, any Collateral Document, Bof A
Collateral Documents Amendment, or Shareholder Security Agreement; (vi) until
the Satisfaction of the Obligations, he/it will not commence judicial or
non-judicial foreclosure proceedings with respect to, seek to have a trustee,
receiver, liquidator or similar official appointed for or over, attempt any
action to take possession of any Collateral, exercise any right, remedy or power
with respect to, or otherwise take any action to enforce its interest in or
realize upon, the Collateral or pursuant to the Collateral Documents, the BofA
Collateral Documents Amendment, or Shareholder Security Agreement; (vii) he/it
will not seek, and hereby waives any right, to have the Collateral or any part
thereof marshaled upon any foreclosure or other disposition of the Collateral,
and (viii) he/it will not attempt, directly or indirectly, whether by judicial
proceedings or otherwise, to challenge the enforceability of any provision of
this Agreement or any Loan Document or any BofA Term Note Debt Document or the
validity, perfection, priority or enforceability of security interests securing
the Obligations, Supplemental Term Loan Liabilities or BofA Term Note Debt.
SECTION 6. Enforcement. To the extent permitted by law, the
right of the Agent, other Holders, CUSA and BofA to enforce the lien
subordination provisions and any other provisions hereof shall not in any way be
prejudiced or impaired by any act or failure to act on the part of the Agent,
any other Holder, CUSA, BofA or any Grantor, or by any noncompliance by any
Grantor, BQ, Xxxxxxx, Xxxxxx or Xxxxx with the terms, provisions and covenants
of this Agreement.
SECTION 7. Agent's, Holders', CUSA's and BofA's Rights;
Certain Duties. (a) Without notice to BQ, Xxxxxxx, Xxxxxx or Xxxxx, and without
affecting or releasing any obligation or agreement of BQ, Xxxxxxx, Xxxxxx and
Xxxxx under this Agreement, the Agent, the
9
other Holders, CUSA and BofA, as applicable, may at any time or times do any of
the following with respect to any of the Obligations, Supplemental Term Loan
Liabilities, and BofA Term Note Debt: (i) waive or rescind any Potential Event
of Default, Event of Default or other default, (ii) exercise any rights or
remedies with respect to the Obligations or Supplemental Term Loan Liabilities
or BofA Term Note Debt, (iii) amend, modify, alter or waive any of the terms of
any of the Loan Documents or BofA Term Note Debt Documents, (iv) renew or extend
the time for payments of all or any part of the Obligations, Supplemental Term
Loan Liabilities or BofA Term Note Debt, (v) increase or decrease the amount of
the Obligations, Supplemental Term Loan Liabilities or BofA Term Note Debt, (vi)
accept additional collateral security or guaranties for all or any part of the
Obligations, Supplemental Term Loan Liabilities or BofA Term Note Debt, and
sell, exchange, fail to perfect, release or otherwise deal with all or any part
of any such collateral or guaranties in connection with a sale or other
disposition, (vii) release any party primarily or secondarily obligated on the
Obligations, Supplemental Term Loan Liabilities or BofA Term Note Debt, (viii)
grant indulgences and take or refrain from taking any action with regard to the
collection or enforcement of all or any part of the Obligations, Supplemental
Term Loan Liabilities, or BofA Term Note Debt, and (ix) take any action which
might otherwise give rise to any claim by BQ, Xxxxxxx, Xxxxxx or Xxxxx. Nothing
in this Agreement shall impair any right of the Agent, any other Holder, CUSA or
BofA with respect to any of the Obligations, Supplemental Term Loan Liabilities
or BofA Term Note Debt or any collateral security or guaranties therefor or the
proceeds thereof.
(b) Neither the Agent nor BofA, if applicable, shall have any duty to
any of BQ, Xxxxxxx, Xxxxxx or Xxxxx with respect to the custody, safekeeping or
physical preservation of the Collateral in its possession, whether under Section
9-207 of the Code or otherwise, and shall be entitled to deal with such
Collateral in the same manner as it customarily deals with similar collateral
held by it for its own account.
(c) The Agent (and, if applicable, BofA) shall not be responsible in
any manner whatsoever for the correctness of any recitals, statements,
representations or warranties contained in the Collateral Documents by any of
the Grantors, all of which are made solely by the Grantors. The Agent and BofA
make no representations as to the value or condition of the Collateral or any
part thereof, or as to the title of the Grantors thereto, or as to the security
afforded by the Collateral Documents, the BofA Collateral Documents Amendment,
the Shareholder Security Agreement, or this Agreement or as to the validity,
execution (except its own execution thereof), enforceability, legality or
sufficiency of the Collateral Documents, the BofA Collateral Documents Amendment
or the Shareholder Security Agreement, or of the Obligations, Supplemental Term
Loan Liabilities, or BofA Term Note Debt and shall incur no liability or
responsibility with respect to any such matters. Neither the Agent nor BofA
shall be responsible for insuring the Collateral or for the payment of taxes,
charges, assessments or liens upon the Collateral or otherwise as to the
maintenance of the Collateral.
(d) Neither the Agent nor BofA shall be required to ascertain or
inquire as to the performance by any Grantor or any other Person of any of the
covenants or agreements contained in any Collateral Document, the BofA
Collateral Documents Amendment or the Shareholder Security Agreement.
10
(e) Neither the Agent nor BofA shall be personally liable for any
action taken or omitted to be taken by it in accordance with this Agreement, any
Collateral Document, the BofA Collateral Documents Amendment. Each of BQ,
Xxxxxxx, Xxxxxx and Xxxxx hereby acknowledges that the Agent and its affiliates
and BofA have made and may hereafter make credit extensions to, accept deposits
from and generally engage in business with the Grantors and agree that the Agent
and its affiliates and BofA may continue to do so.
(f) The Agent and BofA may rely, and shall be fully protected in
acting, upon any resolution, statement, certificate, instrument, opinion,
report, notice, request, consent, order, bond or other paper or document which
it has no reason to believe to be other than genuine and to have been signed or
presented by the proper party or parties or, in the case of telecopies and
telexes, to have been sent by the proper party or parties. The Agent and BofA
may conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon any certificates or opinions furnished to
it and conforming to the requirements of this Agreement, the Collateral
Documents, or the BofA Collateral Documents Amendment. The Agent and BofA may
consult with counsel, and any opinion of such counsel (whether in-house counsel
or independent outside counsel) shall be full and complete authorization and
protection in respect of any action taken or suffered by it hereunder in
accordance therewith.
(g) Neither the Agent nor BofA shall be under any obligation to any of
BQ, Xxxxxxx, Xxxxxx or Xxxxx to exercise any of the rights or powers vested in
the Agent by this Agreement, the Collateral Documents or the BofA Collateral
Documents Amendment, unless it shall have been provided adequate security and
indemnity against the costs, expenses and liabilities which may be incurred by
it in compliance with such request or direction, including, without limitation,
such reasonable advances as may be requested by the Agent or BofA, as
applicable.
SECTION 8. Representations and Warranties of BQ, Xxxxxxx,
Xxxxxx and Xxxxx. Each of BQ, Xxxxxxx, Xxxxxx and Xxxxx, as applicable,
represents and warrants to the Agent for the benefit of itself and other Holders
and to CUSA and BofA that each of the following statements are true and correct
in all material respects:
(a) Such Person has not previously assigned any interest in the Xxxxxxx
Term Note Debt or Shareholder Subrogation Claims owing to such Person or any
security interest in connection therewith, that no other party owns an interest
in such Xxxxxxx Term Note Debt or Shareholder Subrogations Claims or security
therefor other than BQ, Xxxxxxx, Xxxxxx and Xxxxx (whether as joint holders of
such Xxxxxxx Term Note Debt or Shareholder Subrogation Claims, participants or
otherwise) and that all of such Xxxxxxx Term Note Debt is owing only to BQ and
Shareholder Subrogation Claims, if any, are owing only to Xxxxxxx, Xxxxxx or
Xxxxx, as applicable.
(b) The Indebtedness owing to BQ under the Xxxxxxx Note as of the date
hereof constitutes, as of the date hereof, all of the now existing liabilities
of any nature whatsoever of the Grantors to BQ under the Xxxxxxx Term Note Debt
Documents. To the knowledge of BQ, there is no event of default or default
existing which with the giving of notice, passage of time or both would
constitute an event of default under the Xxxxxxx Term Note Debt Documents.
11
(c) This Agreement has been executed and delivered by or on behalf of
such Person and constitutes the legal, valid and binding obligation thereof,
enforceable in accordance with its terms subject to bankruptcy, insolvency,
moratorium and other laws affecting creditors' rights generally and equitable
principles.
SECTION 9. Covenants. (a) Each of BQ, Xxxxxxx, Xxxxxx and
Xxxxx agrees that such Person will not accept any collateral security from the
Grantors for any Xxxxxxx Term Note Debt or Shareholder Subrogation Claims,
except to the extent provided in the Shareholder Security Agreement or otherwise
as permitted by the terms of the Credit Agreement and subject to the terms of
this Agreement, without the prior written consent of the Holders, CUSA and BofA.
(b) Each of BQ, Xxxxxxx, Xxxxxx and Xxxxx covenants that all Xxxxxxx
Term Note Debt, Shareholder Subrogation Claims, and collateral therefor shall be
and continue to be held solely for the benefit of BQ, Xxxxxxx, Xxxxxx and Xxxxx,
as applicable, and their respective heirs, successors, and assigns, until the
Satisfaction of the Obligations, unless otherwise consented to by the Holders,
CUSA and BofA or unless the transferee agrees to be bound by the terms of this
Agreement.
(c) Promptly upon obtaining knowledge thereof, BQ, Xxxxxxx, Xxxxxx and
Xxxxx shall deliver written notice to the Agent and BofA of the occurrence of an
event of default or default which with the giving of notice, passage of time or
both would constitute an event of default existing under any of the Shareholder
Debt Documents, together with a description of the nature thereof.
(d) None of BQ, Xxxxxxx, Xxxxxx or Xxxxx shall not initiate or
prosecute or encourage any other Person to initiate or prosecute any claim,
action or other proceeding (i) challenging the enforceability or priority of the
Agent, other Holders', CUSA's or BofA's respective claims to the Collateral, or
(ii) challenging the enforceability or priority of any liens or security
interests in the Collateral.
(e) Each of BQ, Xxxxxxx, Xxxxxx and Xxxxx hereby agrees to pay,
indemnify and hold the Agent and BofA harmless from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever with respect
to the execution, delivery, enforcement, performance and administration of this
Agreement. Notwithstanding the foregoing, the Agent shall not be indemnified
under this clause to the extent such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements are
determined by a court of competent jurisdiction to have resulted from the gross
negligence or willful misconduct of the Agent.
SECTION 10. Continuing Nature of Agreement. This Agreement
shall be effective and may not be terminated or otherwise revoked by BQ,
Xxxxxxx, Xxxxxx or Xxxxx until the Satisfaction of the Obligations. In the event
BQ, Xxxxxxx, Xxxxxx or Xxxxx shall have any right under applicable law otherwise
to terminate or revoke this Agreement which right cannot be waived, such
termination or revocation shall not be effective until written notice of such
termination or revocation, signed by BQ, Xxxxxxx, Xxxxxx or Xxxxx, as
applicable, is actually
12
received by the Agent in accordance with the notice provisions of this Agreement
set forth in Section 13. In the absence of the circumstances described in the
immediately preceding sentence, this is a continuing agreement as to the lien
subordination and other provisions hereof and the Agent, the other Holders, and
BofA may continue, at any time and without notice to BQ, Xxxxxxx, Xxxxxx or
Xxxxx, to extend credit or other financial accommodations and loan monies to or
for the benefit of the Grantors on the faith hereof. Any termination or
revocation described hereinabove shall not affect this Agreement in relation to
(a) any of the Obligations, Supplemental Term Loan Liabilities or Bof A Term
Note Debt which arose prior to receipt thereof or (b) any of the Obligations,
Supplemental Term Loan Liabilities, or BofA Term Note Debt created after receipt
thereof, if such Obligations, Supplemental Term Loan Liabilities or BofA Term
Note Debt were incurred for the purpose of protecting any collateral or in
respect of enforcement costs, expenses, and attorneys' and paralegals' fees,
whensoever made, advanced or incurred by the Holders, CUSA or BofA in connection
with the Obligations, Supplemental Term Loan Liabilities or BofA Term Note Debt.
If, in reliance on this Agreement, any Holder, CUSA or BofA makes loans or other
advances to or for the benefit of the Grantors or takes other action under the
Loan Documents after such aforesaid termination or revocation by BQ, Xxxxxxx,
Xxxxxx or Xxxxx, but prior to the receipt by the Agent of said written notice as
set forth above, the rights of the Agent, the other Holders, CUSA and BofA
hereunder shall be the same as if such termination or revocation had not
occurred.
SECTION 11. Remedies; Severability. (a) The Agent's, other
Holders', CUSA's, and BofA's rights and remedies under this Agreement shall be
cumulative and nonexclusive of any other rights and remedies which the Agent,
other Holders, CUSA or BofA may have under any other agreement, by operation of
law or otherwise.
(b) If any one or more of the provisions contained in this
Agreement should be held invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein shall not in any way be affected or impaired thereby (it being understood
that the invalidity of a particular provision in a particular jurisdiction shall
not in and of itself affect the validity of such provision in any other
jurisdiction).
SECTION 12. Execution in Counterparts; Binding Effect. (a)
This Agreement may be executed in any number of counterparts and by different
parties hereto in separate counterparts, each of which when so executed and
delivered shall be deemed to be an original and all of which taken together
shall constitute but one and the same instrument. Delivery of an executed
counterpart of this Agreement by telecopier shall be effective as delivery of a
manually executed counterpart of this Agreement.
(b) This Agreement shall be binding upon and inure to the
benefit of each of the parties hereto and each of the Holders and their
respective successors and assigns, and nothing herein or in the Collateral
Documents, the BofA Collateral Documents Amendment, or Shareholder Security
Agreement is intended or shall be construed to give any other person any right,
remedy or claim under, to or in respect of this Agreement or the Collateral.
SECTION 13. Notices. All notices, requests, demands and other
communications provided for or permitted hereunder shall be in writing
(including telecopy or e-
13
mail communications) and shall be sent by mail, telecopier, hand delivery or
e-mail delivery as follows:
(a) if to Agent, at its address at 000 Xxxxxxxxx Xxxxxx, 00xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attn: Xxxxx X. Xxxxxxx, Telecopy No.
000-000-0000, e-mail address: xxxxx.x.xxxxxxx@xxxx.xxx, with a copy to Sidley
Xxxxxx Xxxxx & Xxxx, Bank One Plaza, 00 Xxxxx Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx
00000, Attn: Xxxxxxx X. Xxxxxx, Telecopy No. 312-853-7036, e-mail address:
xxxxxxx@xxxxxx.xxx
(b) if to CUSA, at its address at 000 Xxxxxxxxx Xxxxxx, 00xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attn: Xxxxx X. Xxxxxxx, Telecopy No.
000-000-0000, e-mail address: xxxxx.x.xxxxxxx@xxxx.xxx, with a copy to Sidley
Xxxxxx Xxxxx & Xxxx, Bank One Plaza, 00 Xxxxx Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx
00000, Attn: Xxxxxxx X. Xxxxxx, Telecopy No. 312-853-7036, e-mail address:
xxxxxxx@xxxxxx.xxx
(c) if to BofA, at its address at 000 Xxxxxxxxx, 0xx Xxxxx,
Xxxxxxx, Xxxxx 00000, Attn: Xxxxxxxx Xxxxxxx, Telecopy No. 000-000-0000, e-mail
address: xxxxxxxx.xxxxxxx@xxxxxxxxxxxxx.xxx, with a copy to Xxxxxx & Xxxxxx,
L.L.P., 000 Xxxxxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxx 00000, Attn: Xxxx X. Xxxxxxxx,
Telecopy No. 000-000-0000, e-mail address: XXxxxxxxx@xxxxxxxxxxxx.xxx
or, in each instance, at such other address as shall be designated by it in a
written notice to the other party to this Agreement. All such notices, requests,
demands and communications shall be deemed to have been duly given or made, if
sent by mail, five (5) days after deposit (as evidenced by the postmark
appearing thereon) in the U.S. mails, postage prepaid; if sent by telecopy or
e-mail, as of the time of such telecopy or e-mail transmission; and, if
delivered by hand, when so delivered.
SECTION 14. Governing Law; Consent to Jurisdiction. (a) This
Agreement shall be governed by and construed in accordance with the laws of the
State of New York.
(b) Each of the parties hereto hereby irrevocably and unconditionally
submits to the non-exclusive jurisdiction of any New York State court or Federal
court of the United States of America sitting in New York City, and any
appellate court from any thereof, in any action or proceeding arising out of or
relating to this Agreement, any Collateral Document, the BofA Collateral
Documents Amendment, or the Shareholder Security Agreement or for recognition or
enforcement of any judgment, and each of the parties hereto hereby irrevocably
and unconditionally agrees that, to the extent permitted by applicable law, all
claims in respect of any such action or proceeding may be heard and determined
in such New York State or, to the extent permitted by law, Federal court. Each
of the parties hereto agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment or in any other manner provided by law.
(c) Each of the parties hereto hereby irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection that it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of our relating to this
14
Agreement in any New York State or Federal court. Each of the parties hereto
hereby irrevocably waives, to the fullest extent permitted by law, the defense
of an inconvenient forum to the maintenance of such action or proceeding in any
such court.
(d) Each of the parties hereto irrevocably consents to service of
process in the manner provided for notices in Section 13. Nothing in this
Agreement will affect the right of any party to this Agreement to serve process
in any other manner permitted by law.
(e) EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH
THIS AGREEMENT. EACH PARTY HERETO CERTIFIES THAT NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH
OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING
WAIVER AND ACKNOWLEDGES THAT IT AND THE OTHER PARTY HERETO HAVE BEEN INDUCED TO
ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION.
SECTION 16. Headings. Section headings in this Agreement
are included herein for convenience of reference only and shall not constitute
a part of this Agreement for any other purpose.
15
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed and delivered by their respective officers thereunto
duly authorized as of the date first above written.
CITICORP USA, INC., CITICORP USA, INC.,
as Agent as holder of the Warrant
By /s/ Xxxxx X. Xxxxxxx By /s/ Xxxxx X. Xxxxxxx
---------------------------- ----------------------------
Xxxxx X. Xxxxxxx Xxxxx X. Xxxxxxx
Vice President Vice President
BANK OF AMERICA, N.A. /s/ Xxxxxx Xxxxxxx
------------------------------
Xxxxxx Xxxxxxx
By /s/ Xxxxxxxx Xxxxxxx /s/ Xxxxxx X. Xxxxxxx
---------------------------- ------------------------------
Xxxxxxxx Xxxxxxx Xxxxxx X. Xxxxxxx
Vice President
/s/ Xxx X. Xxxxxxx
------------------------------
Xxx X. Xxxxxxx
LJH, LTD. XXXXX INVESTMENTS, INC.
By DLH Management, L.L.C.,
General Partner
By /s/ Xxxxxx Xxxxxx
----------------------------
Xxxxxx Xxxxxx
By /s/ Xxxx X. Xxxxxx President
----------------------------
Xxxx X. Xxxxxx
President
16
Acknowledged and agreed as of the 12th day of July, 2002.
AVIATION SALES DISTRIBUTION SERVICES COMPANY
AEROCELL STRUCTURES, INC.
AVS/M-2, INC.
WHITEHALL CORPORATION
TRIAD INTERNATIONAL MAINTENANCE CORPORATION
AVS/M-3, INC.
AIRCRAFT INTERIOR DESIGN, INC.
AVS/CAI, INC.
TIMCO AVIATION SERVICES, INC.
AVIATION SALES LEASING COMPANY
TIMCO ENGINE CENTER, INC.
AVS/M-1, INC.
AVIATION SALES PROPERTY MANAGEMENT CORP.
HYDROSCIENCE, INC.
AVSRE, L.P.
By Aviation Sales Property Management
Corp., as general partner
TIMCO ENGINEERED SYSTEMS, INC.
By /s/ Xxxxxxx X. Xxxxx
--------------------------------
Xxxxxxx X. Xxxxx
Treasurer
17
