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EXHIBIT 10(i)
AMENDMENT NO. 6 AND CONSENT
Dated as of December 31, 1998
to
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of December 12, 1996
This Amendment No. 6 and Consent ("Amendment") dated as of December
31, 1998 is entered into among Banner Aerospace, Inc., a Delaware corporation
("Banner"), Banner Aerospace-Singapore, Inc., a Delaware corporation, Banner
Aerospace Services, Inc., an Ohio corporation ("Services"), D A C International,
Inc., a Texas corporation, Dallas Aerospace, Inc., a Texas corporation,
Georgetown Jet Center, Inc., a Delaware corporation, Matrix Aviation, Inc., a
Kansas corporation, Nasam Incorporated, a California corporation, XX Xxxxxxx
Aerospace, Inc., a Missouri corporation ("Xxxxxxx"), Professional Aircraft
Accessories, Inc., a Florida corporation, and Professional Aviation Associates,
Inc., a Georgia corporation, and BAR DE, Inc., a Delaware corporation ("AS
Subsidiary"), as Borrowers, NationsBank, N.A., as a Lender, Citicorp USA, Inc.,
as a Lender, and Citibank, N.A., as Issuing Bank. Capitalized terms used herein
without definition are used herein as defined in the Credit Agreement.
PRELIMINARY STATEMENT:
WHEREAS, Banner and certain of its U.S. Subsidiaries, as Borrowers,
NationsBank, N.A., as Lender, Citicorp USA, Inc., as a Lender and Administrative
Agent, and Citibank, N.A., as Issuing Bank, are parties to that certain Second
Amended and Restated Credit Agreement dated as of December 12, 1996, as
heretofore amended (the "Credit Agreement");
WHEREAS, Banner has requested that certain terms of the Credit
Agreement be amended (a) to enable the Borrowers to (i) make certain additional
Investments in marketable securities to be acquired from Xxxxxxxxx and/or its
Subsidiaries, (ii) incur certain additional Indebtedness and grant Liens in
certain Collateral to secure the same on a first priority basis, (iii) enter
into sales of certain Collateral with modified mandatory prepayment and
commitment reduction requirements, and (iv) make certain additional Investments
in Xxxxxxxxx through the loan of up to $30,000,000, the repayment of which would
be subordinated to Xxxxxxxxx'x obligations under that certain Third Amended and
Restated Credit Agreement dated as of December 19, 1997 to which Xxxxxxxxx, RHI
and RHI's Wholly-Owned Subsidiary, Xxxxxxxxx Holding Corp. are parties as
borrowers and (b) to amend the definition of EBITDA based upon the sale by
Banner of all of the Capital Stock of Solair, Inc.;
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NOW, THEREFORE, the parties hereto hereby agree as follows:
SECTION 1. Amendments to the Credit Agreement. Effective as of
December 31, 1998, subject to the satisfaction of the conditions precedent set
forth in Section 3 hereof, the Credit Agreement is hereby amended as follows:
1.1 Section 1.01 is amended to (i) delete the definitions of "AS
Stock", "Borrowing Base", "Borrowing Base Certificate", "Borrowers", "EBITDA",
"Fixed Charge Coverage Ratio", "Interest Coverage Ratio", and "Leverage Ratio"
in their entirety and substitute the following therefor:
"AS Stock" means Capital Stock of AlliedSignal Inc., a Delaware
corporation, which is common stock, owned by a Borrower, and subject to a
Lien in favor of the Administrative Agent for the benefit of the Holders,
junior to no other Liens or escrow agreement prior to the initial advance
under the Margin Loan and execution and delivery of the Margin Loan
Intercreditor Agreement and, after the initial advance under the Margin
Loan, junior only to Liens permitted under Section 10.03(h).
"Borrowing Base" means, as of any date of determination:
(i) prior to the initial advance under the Margin Loan, an amount
(designated as such on the Borrowing Base Certificate dated as of such
date of determination) equal to the sum of (a) eighty percent (80%) of the
face amount of Eligible Receivables, plus (b) sixty-five percent (65%) of
(1) the Total Book Value of Eligible Inventory minus (2) the Texas Tax
Reserve, plus (c) with respect to AS Stock which is neither subject to a
demand registration rights agreement satisfactory to the Administrative
Agent and the Requisite Lenders nor registered stock, thirty-five percent
(35%) of the lesser of (1) the market value of such AS Stock (determined
based on the average closing price for the five (5) days immediately
preceding the date of determination) or (2) the strike price for such AS
Stock under Hedge Agreement(s) applicable thereto, plus (d) with respect
to AS Stock which is either subject to a demand registration rights
agreement satisfactory to the Administrative Agent and the Requisite
Lenders or registered stock, fifty percent (50%) of the lesser of (1) the
market value of such AS Stock (determined based on the average closing
price for the five (5) days immediately preceding the date of
determination) or (2) the strike price for such AS Stock under Hedge
Agreement(s) applicable thereto and
(ii) from and after the initial advance under the Margin Loan, an amount
(designated as such on the Borrowing Base Certificate dated as of such
date of determination) equal to the sum of (a) eighty percent (80%) of the
face amount of
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Eligible Receivables, plus (b) sixty-five percent (65%) of (1) the Total
Book Value of Eligible Inventory minus (2) the Texas Tax Reserve.
"Borrowing Base Certificate" means a certificate, in substantially the
form of EXHIBIT B attached hereto and made a part hereof, setting forth
for determination of the Borrowing Base, inter alia, the value of Eligible
Receivables, the Total Book Value of Eligible Inventory, the respective
advance percentages with respect thereto, and the resultant Borrowing
Base, in each instance, as of the date of such certificate.
"Borrowers" means, collectively, Banner Aerospace, Inc., a Delaware
corporation; Banner Aerospace Services, Inc., an Ohio corporation; Banner
Aerospace-Singapore, Inc., a Delaware corporation; D A C International,
Inc., a Texas corporation; Dallas Aerospace, Inc., a Texas corporation;
Georgetown Jet Center, Inc., a Delaware corporation; Matrix Aviation,
Inc., a Kansas corporation; Nasam, Incorporated, a California corporation;
XX Xxxxxxx Aerospace, Inc., a Missouri corporation; Professional Aircraft
Accessories, Inc., a Florida corporation; Professional Aviation
Associates, Inc., a Georgia corporation; and BAR DE, Inc., a Delaware
corporation; and "Borrower" means each of the foregoing, individually.
"EBITDA" means, for any period, the amount calculated, without
duplication, for such period as (i) Net Income, plus (ii) depreciation and
amortization expense, plus (iii) Total Interest Expense, plus (iv)
federal, state, and local income taxes deducted from Net Income in
accordance with GAAP, plus (v) non-cash reserves during such period
related to the scrapping of Inventory, minus (vi) the amount of all
premiums received due to the sale of equity calls under Hedge Agreements
to the extent the same are included in pre-tax Net Income, plus/minus
(vii) non-cash charges to income resulting from changes in the value of
equity calls and/or puts under Hedge Agreements in accordance with GAAP,
minus (viii) the amount of all gains attributable to sales of Capital
Stock of AlliedSignal Inc., and minus (ix) if such period occurs in the
Fiscal Year ending March 31, 1999, all operating losses incurred with
respect to Solair, Inc. during such period and the pre-tax loss on the
sale of the Capital Stock of Solair, Inc. which losses are recorded in the
Financial Statements delivered to the Administrative Agent as required by
Section 8.01(b) and Section 8.01(c).
"Fixed Charge Coverage Ratio" means:
(i) for any period ending on or prior to December 31, 1998 and any period
ending after December 31, 1999, the ratio of (a) the amount calculated as
(1) EBITDA minus (2) all income
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taxes paid in cash during such period minus (3) the aggregate amount of
Capital Expenditures made in cash during such period plus (4) the
aggregate amount of Permitted Lease Payments made in cash during such
period to (b) the sum of (1) Cash Interest Expense plus (2) the aggregate
amount of scheduled payments of principal of Funded Debt during such
period plus (3) the amount of dividends declared and paid by Banner which
are permitted under Section 10.06(c) plus (4) the aggregate amount of
Permitted Lease Payments made in cash during such period and
(ii) for any period ending after December 31, 1998 and before January 1,
2000, the ratio of (a) the amount calculated as (1) EBITDA minus (2) all
income taxes paid in cash during such period minus (3) the aggregate
amount of Capital Expenditures made in cash during such period plus (4)
the aggregate amount of Permitted Lease Payments made in cash during such
period to (b) the sum of (1) calendar year to date Cash Interest Expense
annualized for the then current calendar year plus (2) the aggregate
amount of scheduled payments of principal of Funded Debt during such
period plus (3) the amount of dividends declared and paid by Banner which
are permitted under Section 10.06(c) plus (4) the aggregate amount of
Permitted Lease Payments made in cash during such period.
"Interest Coverage Ratio" means:
(i) for any period ending on or prior to December 31, 1998 and any period
ending after December 31, 1999, the ratio of (a) Banner's consolidated
EBITDA to (b) Cash Interest Expense and
(ii) for any period ending after December 31, 1998 and before January 1,
2000, the ratio of (a) Banner's consolidated EBITDA to (b) calendar year
to date Cash Interest Expense annualized for the then current calendar
year.
"Leverage Ratio" means:
(i) for any period ending on or prior to December 31, 1998, the ratio of
average daily Funded Debt to EBITDA for such period and
(ii) for any period ending after December 31, 1998, the ratio of average
Funded Debt for the quarter then ending to EBITDA for such period.
and (ii) add the following definitions thereto:
"Banner Preferred" means Series A Convertible Paid-in-Kind Preferred Stock
of Banner, par value $.01 per share, and having a liquidation value of
$9.20 per share.
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"Banner Stock" means all of the Capital Stock of Banner which comprises
part of the "Collateral" (as defined in the Xxxxxxxxx Credit Agreement),
including, without limitation, common Capital Stock of Banner and Banner
Preferred.
"Banner Stock Availability" means an amount equal to forty percent (40%)
of the Market Value of the Banner Stock minus forty percent (40%) of the
cumulative amount of cash loaned, advanced, dividended, distributed,
invested, or otherwise transferred by Banner to Xxxxxxxxx from and after
December 26, 1998.
"Xxxxxxxxx Credit Agreement" means that certain Third Amended and Restated
Credit Agreement dated as of December 19, 1997 to which Xxxxxxxxx, FHI and
Xxxxxxxxx Holding Corp. are parties as borrowers.
"Margin Loan" means Indebtedness incurred by AS Subsidiary from Salomon
Brothers Holding Company Inc on terms satisfactory and subject to
agreements in form and substance satisfactory to the Administrative Agent,
the principal amount of which shall not exceed $110,000,000 in the
aggregate at any time outstanding, and which shall be secured solely by AS
Stock and the proceeds thereof.
"Margin Loan Intercreditor Agreement" means an Intercreditor and Custodial
Agreement in substantially the form attached hereto as Exhibit 10.03-H
among the Lenders, the Administrative Agent, Citibank, NationsBank, and
Salomon Brothers Holding Company Inc.
"Market Value" means(i) with respect to the AS Stock and Banner Stock
which is common stock, the value determined based on the average closing
price for the five (5) consecutive trading days immediately preceding the
date of determination and (ii) with respect to the Banner Preferred, the
greater of (a) the liquidation value of the Banner Preferred and (b)
provided that the Banner Preferred is readily convertible into common
Capital Stock of Banner, the value of the common Capital Stock of Banner
into which the Banner Preferred would convert determined based on the
average closing price for the five (5) consecutive trading days
immediately preceding the date of determination.
"Permitted Transaction" means any of the following, (i) the sale,
liquidation or other transfer of the AS Stock to any Person other than a
Borrower or a Subsidiary of a Borrower; (ii) the sale of the Capital Stock
of Solair, Inc. to Xxxxxxxxx Industries, Inc. under the terms of that
certain Stock Purchase Agreement dated as of December 5, 1998 among
Banner, Solair, Inc. and Xxxxxxxxx Industries, Inc.; or (iii) the
incurrence of Indebtedness as permitted under Section 10.01(p); and
"Permitted Transactions" means,
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collectively, all of the transactions described in clauses (i) - (iii)
above.
1.2 Section 4.01(b) is amended to delete the provisions thereof in
their entirety and substitute the following therefor:
(b) Mandatory Prepayments/Reductions.
(i) Net Cash Proceeds of Sale. Upon receipt by any Borrower or any
Subsidiary of a Borrower of any Net Cash Proceeds of Sale, including,
without limitation receipt of cash proceeds in connection with forward
sales contracts of Capital Stock, the Borrowers shall make or cause to be
made a mandatory prepayment of the Obligations in an amount equal to one
hundred percent (100%) of such Net Cash Proceeds of Sale which, when
combined with all other Net Cash Proceeds of Sale received in the same
Fiscal Year, exceeds $150,000 in the aggregate; provided, however, that
notwithstanding the foregoing, (A) one-third of the Net Cash Proceeds of
Sale from the sale of Real Property of Xxxxx Industries, Inc. located in
Suffield, Connecticut shall be required to be remitted as a mandatory
prepayment of the Obligations, (B) that portion of the Net Cash Proceeds
of Sale from the sale of Real Property of Matrix Aviation, Inc. located in
Wichita, Kansas which exceeds $150,000 shall be required to be remitted as
a mandatory prepayment of the Obligations, (C) no portion of the Net Cash
Proceeds of Sale from the sale of Banner's Investment in Capital Stock,
and warrants for Capital Stock, of Interactive Flight Technologies, Inc.
shall be required to be remitted as a mandatory prepayment of the
Obligations, and (D) any mandatory prepayment from Net Cash Proceeds of
Sale arising from consummation of a Permitted Transaction shall be subject
to the provisions of clause (viii) below.
(ii) Intentionally omitted.
(iii) Net Cash Proceeds of Issuance of Equity Securities or
Indebtedness. Upon receipt by a Borrower or any Subsidiary of a Borrower
of any Net Cash Proceeds of Issuance of Equity Securities or Indebtedness,
the Borrowers shall make or cause to be made a mandatory prepayment in an
amount equal to (A) seventy-five percent (75%) of such Net Cash Proceeds
of Issuance of Equity Securities or Indebtedness arising from consummation
of any issuance other than with respect to a Permitted Transaction and (B)
subject to the provisions of clause (viii) below, one hundred percent
(100%) of such Net Cash Proceeds of Issuance of Equity Securities or
Indebtedness arising from consummation of the issuance of Indebtedness
constituting a Permitted Transaction.
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(iv) No Waiver or Consent. Nothing in this Section 4.01(b) shall be
construed to constitute the Lenders' consent to any transaction referenced
in clauses (i) and (iii) above which is not expressly permitted by Article
X.
(v) Notice. The Borrowers shall give the Administrative Agent prior
written notice or telephonic notice promptly confirmed in writing (each of
which the Administrative Agent shall promptly transmit to each Lender),
when a Designated Prepayment will be made (which date of prepayment shall
be no later than the date on which such Designated Prepayment becomes due
and payable pursuant to this Section 4.01(b)). Each such notice delivered
with respect to a Designated Prepayment described in Section 4.01(b)(i)
shall be accompanied by an Officer's Certificate executed by the chief
financial officer, vice-president of finance, treasurer or controller of
Banner setting forth in reasonable detail a calculation of the amount of
such Designated Prepayment.
(vi) Application of Designated Prepayments. Designated
Prepayments shall be allocated and applied to the Obligations as
follows:
(A) the amount of each Designated Prepayment shall be applied to the
outstanding Revolving Loans and shall permanently reduce the Revolving
Credit Commitment of each Revolving Lender proportionately in accordance
with its Revolving Loan Pro Rata Share;
(B) following the payment in full of the Revolving Loans, the
remaining balance of each Designated Prepayment shall be applied to the
Letter of Credit Obligations (or, to the extent such Letter of Credit
Obligations are contingent, deposited in the Cash Collateral Account to
provide Cash Collateral in respect of such Letter of Credit Obligations);
and
(C) following the application to the Letter of Credit Obligations
described in clause (B) above, the remaining balance of each Designated
Prepayment shall be applied to all other Obligations then outstanding in
the order provided in Section 4.02(b)(i).
To the extent that the amount of the Designated Prepayments exceeds the
outstanding Obligations prepaid or repaid thereby, the amount of such
excess shall be disbursed in accordance with the Borrowers' written
instructions to the Administrative Agent.
(vii) Permanent Reduction. Upon the prepayment of Revolving Loans
pursuant to this Section 4.01(b), the Revolving Credit Commitments,
automatically and permanently,
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shall be reduced by the amount of such prepayment except that the
Revolving Credit Commitments shall only be reduced in connection with any
Borrower's or any Borrower's Subsidiary's receipt of Net Cash Proceeds of
Sale and/or Net Cash Proceeds of Issuance of Equity Securities or
Indebtedness received upon the consummation of one or more Permitted
Transactions (net of the amount required to be applied to reduce the
outstanding principal balance of the Margin Loan in accordance with the
terms thereof) by the amount of such Net Cash Proceeds which (1) exceed
$25,000,000 in the aggregate but (2) are less than $96,500,000 in the
aggregate.
(viii) Mandatory Prepayment Exceptions Pertaining to Proceeds of
Permitted Transactions. Notwithstanding the foregoing, provided that no
Event of Default or Potential Event of Default shall then have occurred
and be continuing unwaived and that the subject Net Cash Proceeds (net of
the amount required to be applied to reduce the outstanding principal
balance of the Margin Loan in accordance with the terms thereof) are used
to repay then outstanding Revolving Loans (subject to the right to
re-borrow under Section 2.02), neither (A) the initial $25,000,000 in the
aggregate of Net Cash Proceeds of Sale and/or Net Cash Proceeds of
Issuance of Equity Securities or Indebtedness received upon the
consummation of one or more Permitted Transactions (net of the amount
required to be applied to reduce the outstanding principal balance of the
Margin Loan in accordance with the terms thereof) nor (B) the amount of
Net Cash Proceeds of Sale and/or Net Cash Proceeds of Issuance of Equity
Securities or Indebtedness in excess of $96,500,000 in the aggregate
received upon the consummation of one or more Permitted Transactions (net
of the amount required to be applied to reduce the outstanding principal
balance of the Margin Loan in accordance with the terms thereof) shall
constitute a Designated Prepayment or be required to be remitted to the
Administrative Agent as a mandatory prepayment as aforesaid.
1.3 Section 7.02 is amended to delete the provisions of clauses (b)
and (c) thereof in their entirety and substitute the following therefor:
(b) Indebtedness. AS Subsidiary has no Indebtedness owing to any Person
other than the Obligations owing to the Holders and Indebtedness permitted
by Section 10.01(p) and has entered into no Contractual Obligations, other
than the Loan Documents, Hedge Agreements and Contractual Obligations
pertaining to the Indebtedness permitted by Section 10.01(p), with any
other Person.
(c) Liens Against the AS Stock. AS Subsidiary holds all right, title and
interest in and to the AS Stock free and clear of all Liens except (i)
Liens granted under the Loan
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Documents to secure the Obligations and (ii) such Liens as may be granted
as permitted by Section 10.03(h); and the Administrative Agent, for the
benefit of the Holders, has a valid and perfected (A) first priority Lien
against the AS Stock prior to execution and delivery of the Margin Loan
Intercreditor Agreement and (B) Lien junior only to the Lien permitted by
Section 10.03(h) from and after execution and delivery of the Margin Loan
Intercreditor Agreement.
1.4 Section 9.19 is amended to delete the provisions thereof in
their entirety and substitute the following therefor:
9.19. Nature of Business of AS Subsidiary. AS Subsidiary shall engage
solely in (a) the business of holding AS Stock, (b) such other activities
as are incidental thereto and to its being a party to this Agreement,
including, without limitation, entering into Contractual Obligations with
respect to Hedge Agreements permitted under the terms of this Agreement,
and (c) activities attendant to incurring Indebtedness with respect to the
Margin Loan and the grant of Liens in connection therewith as permitted by
Section 10.03(h).
1.5 Section 10.01 is amended to (i) delete clause (n) thereof in its
entirety and substitute the following therefor:
(n) other unsecured Indebtedness incurred after the Effective Date not to
exceed $250,000 in the aggregate at any time outstanding;
(ii) delete the "." at the end of clause (o) thereof and substitute "; and"
therefor, and (iii) add the following as clause (p) thereof:
(p) Indebtedness incurred in connection with the Margin Loan;
1.6 Section 10.02(k) is amended to delete the provisions thereof in
their entirety and substitute the following therefor:
(k) the transfer or sale of AS Stock pursuant to Hedge Agreements or for
an amount at least equal to the fair market value thereof as of the time
of such transfer or sale; provided that the Borrowers comply with the
mandatory prepayment provisions set forth in Section 4.01(b) and the
conditions to the release of Collateral described in Section 13.09(c) and
thereafter have no Hedge Agreement outstanding with respect to uncovered
calls.
1.7 Section 10.03(h) is amended to delete the phrase "Intentionally
omitted." therefrom in its entirety and to substitute the following therefor:
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(h) Liens granted to Salomon Brothers Holding Company Inc in the AS Stock
and proceeds thereof to secure the Indebtedness of AS Subsidiary permitted
under Section 10.01(p); provided that the Margin Loan Intercreditor is
executed and delivered by the Lenders, Citibank and Salomon Brothers
Holding Company Inc concurrently with the grant of such Liens becoming
effective;
1.8 Section 10.04 is amended to (i) delete the word "and" at the end
of clause (h) thereof and (ii) delete the provisions of clause (i) thereof in
their entirety and substitute the following therefor:
(i) an Investment in the form of subordinated unsecured loans to Xxxxxxxxx
in an aggregate principal amount not to exceed $30,000,000, which loans
shall (A) be evidenced by a promissory note in the form set forth on
Exhibit 10.01-I attached hereto and made a part hereof, the terms of which
promissory note the Lenders acknowledge to be in compliance with Section
10.09, and (B) be made only so long as the sum of (I) the amount equal to
the Market Value of the AS Stock minus the outstanding balance of the
Margin Loan and accrued and unpaid interest thereon, plus (II) Cash
Collateral equals a minimum of the amount equal to the Banner Stock
Availability;
(j) Investments, in addition to those permitted under clauses (a) through
(i) above, other than in the ordinary course of business, in an aggregate
amount not to exceed, at any time outstanding, $25,000,000 and identified
on Schedule 10.04-J attached hereto and made a part hereof.
1.9 Section 10.08 is amended to add the following sentence at the
end thereof:
Notwithstanding the foregoing, in no event shall any activity engaged in
by the Borrowers which is expressly permitted by the terms of this
Agreement or any consent executed and delivered by the Lenders under the
terms hereof which might otherwise fail to comply with the foregoing
constitute a default under this Agreement.
1.10 Section 10.12 is amended to delete the terms thereof in their
entirety and substitute the following therefor:
10.12. Margin Regulations; Securities Laws. Except to the extent permitted
by Section 10.04(j), no Borrower shall, nor shall any Borrower permit any
of its Subsidiaries to, use all or any portion of the proceeds of any
credit extended under this Agreement to purchase or carry Margin Stock or
to violate the Securities Exchange Act or the Securities Act as in effect
on the date or dates of such use of proceeds.
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1.11 Section 10.23(c) is amended to delete the provisions thereof in
their entirety and substitute the following therefor:
(c) Liens. AS Subsidiary shall not grant or suffer to exist any Lien
against any of its Property other than pursuant to the Loan Documents and
as permitted by Section 10.03(h).
1.12 Article XI is amended to delete the provisions of Section
11.01, Section 11.03, and Section 11.06 thereof in their entirety and substitute
the following therefor:
11.01. Interest Coverage Ratio. Banner shall maintain an Interest Coverage
Ratio as determined as of the last day of each fiscal quarter of Banner
set forth below for the four-fiscal-quarter period then ending of at least
the ratio set forth below opposite such determination date:
Fiscal Quarter Ending Ratio
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9/30/95 1.70 to 1.00
12/31/95 1.70 to 1.00
3/31/96 1.70 to 1.00
6/30/96 1.70 to 1.00
9/30/96 1.70 to 1.00
12/31/96 1.70 to 1.00
3/31/97 2.00 to 1.00
6/30/97 2.00 to 1.00
9/30/97 2.20 to 1.00
12/31/97 2.20 to 1.00
3/31/98 2.40 to 1.00
6/30/98 2.40 to 1.00
9/30/98 2.40 to 1.00
12/31/98 2.40 to 1.00
3/31/99 2.50 to 1.00
and each quarter
thereafter
11.03. Leverage Ratio. Banner shall maintain a Leverage Ratio as
determined as of the last day of each fiscal quarter of Banner set forth below
for the four-fiscal-quarter period then ending of not more than the ratio set
forth below opposite such determination date:
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Fiscal Quarter Ending Ratio
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9/30/95 5.95 to 1.00
12/31/95 5.95 to 1.00
3/31/96 5.95 to 1.00
6/30/96 5.95 to 1.00
9/30/96 5.75 to 1.00
12/31/96 5.50 to 1.00
3/31/97 5.00 to 1.00
6/30/97 5.00 to 1.00
9/30/97 5.00 to 1.00
12/31/97 5.00 to 1.00
3/31/98 3.00 to 1.00
6/30/98 3.00 to 1.00
9/30/98 3.00 to 1.00
12/31/98 3.00 to 1.00
3/31/99 5.00 to 1.00
and each quarter
thereafter
11.06. Minimum Cash and Marketable Securities. The sum of (I) the amount
equal to the Market Value of the AS Stock minus the outstanding balance of
the Margin Loan and accrued and unpaid interest thereon, plus (II) Cash
Collateral shall at all times equal a minimum of the amount equal to the
Banner Stock Availability.
1.13 Section 12.01 is amended to add the following provision as
clause (p) thereof:
(p) Maintenance of Banner Stock Availability. The amount of the Banner
Stock Availability shall fail, at any time while both (i) any subordinated
unsecured loans to Xxxxxxxxx permitted pursuant to Section 10.04(i) are
outstanding and (ii) 100% of the Capital Stock of Banner is not owned by
Xxxxxxxxx and/or RHI, to equal or exceed the sum of (I) the amount equal
to the Market Value of the AS Stock minus the outstanding balance of the
Margin Loan and accrued and unpaid interest thereon, plus (II) Cash
Collateral.
1.14 Section 13.09(d) is amended to add the following provision at
the end thereof:
Each Lender and Issuing Bank hereby authorizes and directs the
Administrative Agent to subordinate the Liens granted to the
Administrative Agent for the benefit of the Holders against the AS Stock
to the Liens permitted under Section
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10.03(h) as provided in the Margin Loan Intercreditor Agreement.
1.15 Exhibit B is deleted in its entirety and Exhibit B attached to
this Amendment is substituted therefor.
SECTION 2. Consent. The Lenders hereby consent to (i) the release of
the Lien in favor of the Administrative Agent for the benefit of the Holders
against 44,964 shares of AS Stock (the "Bonus Stock") and direct the
Administrative Agent to deliver share certificates representing the Bonus Stock
to AS Subsidiary upon its written request therefor stating that the Bonus Stock
will be transferred to officers and employees of Banner in payment of deferred
bonuses payable to them under the Banner Aerospace, Inc. Deferred Bonuse Plan
dated January 21, 1998 and (ii) the transfer by AS Subsidiary to Banner of the
Bonus Stock upon its receipt thereof as aforesaid and the subsequent transfer of
the Bonus Stock to such officers and employees in payment of such bonus
obligations.
SECTION 3. Condition Precedent to Effectiveness of this Amendment.
This Amendment shall be effective upon the Administrative Agent's receipt of a
facsimile or original executed copy of this Amendment from the Lenders, the
Issuing Bank, and each of the Borrowers; provided that (a) Banner shall then
have delivered to the Lenders financial projections including income statements
and balance sheets for the Borrowers for each of the Fiscal Years ending March
31, 1999 through March 31, 2002, giving effect to the transactions contemplated
by this Amendment, which financial projections shall have been determined by the
Administrative Agent to be satisfactory in form and substance and (b) the
Borrowers pledge and deliver to the Administrative Agent all Capital Stock and
other evidence of Investments acquired in connection with the transactions
contemplated by this Amendment upon their receipt thereof, including, without
limitation, share certificates and stock powers related thereto acquired after
the date of this Amendment as permitted by Section 10.04(j) and the promissory
note evidencing the obligations of Xxxxxxxxx described in Section 10.04(i).
SECTION 4. Representations and Warranties. Borrowers hereby
represent and warrant as follows:
4.1 The Credit Agreement, as amended by this Amendment, constitutes
the legal, valid and binding obligations of each of the Borrowers and is
enforceable against each of the Borrowers in accordance with its terms.
4.2 No Event of Default or Potential Event of Default exists or
would result from any of the transactions contemplated by this Amendment.
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4.3 Upon the effectiveness of this Amendment, the Borrowers hereby
reaffirm all covenants, representations and warranties made by them,
respectively, in the Credit Agreement to the extent the same are not amended
hereby and each Borrower hereby agrees that all covenants, representations and
warranties in the Credit Agreement, as amended by this Amendment, shall be
deemed to have been remade, or made, as applicable, by such Borrower as of the
date this Amendment becomes effective.
SECTION 5. Reference to and Effect on the Credit Agreement.
5.1 Upon the effectiveness of this Amendment, each reference in the
Credit Agreement to "this Agreement", "hereunder", "hereof", "herein" or words
of like import shall mean and be a reference to the Credit Agreement, as amended
hereby, and each reference to the Credit Agreement in any other document,
instrument or agreement executed and/or delivered in connection with the Credit
Agreement shall mean and be a reference to the Credit Agreement as amended
hereby.
5.2 Except as specifically amended above or otherwise terminated in
writing concurrently with this Amendment becoming effective, the Credit
Agreement, the Revolving Notes and all other Loan Documents shall remain in full
force and effect and are hereby ratified and confirmed.
5.3 The execution, delivery and effectiveness of this Amendment
shall not operate as a waiver of any right, power or remedy of any Lender or
Issuing Bank or the Administrative Agent under the Credit Agreement, the Notes
or any of the other Loan Documents, nor constitute a waiver of any provision
contained therein, except as specifically set forth herein.
SECTION 6. Execution in Counterparts. This Amendment may be executed
in any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed and delivered shall be deemed to be
an original and all of which taken together shall constitute but one and the
same instrument. Delivery of an executed counterpart of this Amendment by
telecopier shall be effective as delivery of a manually executed counterpart of
this Amendment.
SECTION 7. Governing Law. This Amendment shall be governed by
and construed in accordance with the laws of the State of New York.
SECTION 8. Headings. Section headings in this Amendment are
included herein for convenience of reference only and shall not constitute a
part of this Amendment for any other purpose.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed by their respective officers thereunto duly authorized as of the
date first above written.
Borrowers:
----------
BANNER AEROSPACE, INC. BANNER AEROSPACE SERVICES, INC.
By By
--------------------------- --------------------------
Xxxxxxx X. Xxxxx Xxxxxxx X. Xxxxx
Treasurer Treasurer
BANNER AEROSPACE-SINGAPORE, INC. D A C INTERNATIONAL, INC.
By By
--------------------------- --------------------------
Xxxxxxx X. Xxxxx Xxxxxxx X. Xxxxx
Treasurer Treasurer
DALLAS AEROSPACE, INC. GEORGETOWN JET CENTER, INC.
By By
--------------------------- --------------------------
Xxxxxxx X. Xxxxx Xxxxxxx X. Xxxxx
Treasurer Treasurer
NASAM INCORPORATED MATRIX AVIATION, INC.
By By
--------------------------- --------------------------
Xxxxxxx X. Xxxxx Xxxxxxx X. Xxxxx
Treasurer Treasurer
XX XXXXXXX AEROSPACE, INC. PROFESSIONAL AIRCRAFT
ACCESSORIES, INC.
By By
--------------------------- --------------------------
Xxxxxxx X. Xxxxx Xxxxxxx X. Xxxxx
Treasurer Treasurer
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PROFESSIONAL AVIATION BAR DE, INC.
ASSOCIATES, INC.
By By
--------------------------- --------------------------
Xxxxxxx X. Xxxxx Xxxxxxx X. Xxxxx
Treasurer Treasurer
Lenders:
--------
NATIONSBANK, N.A. CITICORP USA, INC.
By By
--------------------------- --------------------------
Xxxxxxx X. Xxxxxxx Xxxxxxx Xxxxxx
Senior Vice President Attorney-in-Fact
Issuing Bank:
-------------
CITIBANK, N.A.
By
--------------------------
Xxxxxxx Xxxxxx
Attorney-in-Fact
Receipt acknowledged this ____ day of January, 1999.
CITICORP USA, INC.,
as Administrative Agent
By
--------------------------
Xxxxxxx Xxxxxx
Attorney-in-Fact
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EXHIBIT B
to
Second Amended and Restated Credit Agreement
dated as of December 12, 1996
as amended by Amendment No. 6 and Consent
dated as of December 31, 1998
Form of Borrowing Base Certificate
----------------------------------
Attached
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EXHIBIT 10.03-H
to
Second Amended and Restated Credit Agreement
dated as of December 12, 1996
as amended by Amendment No. 6 and Consent
dated as of December 31, 1998
Form of Intercreditor and Custodial Agreement
---------------------------------------------
Attached
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EXHIBIT 10.01-I
to
Second Amended and Restated Credit Agreement
dated as of December 12, 1996
as amended by Amendment No. 6 and Consent
dated as of December 31, 1998
Form of Xxxxxxxxx Subordinated Note
-----------------------------------
Attached
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SCHEDULE 10.04-J
to
Second Amended and Restated Credit Agreement
dated as of December 12, 1996
as amended by Amendment No. 6 and Consent
dated as of December 31, 1998
Schedule of $20,000,000 Investments
-----------------------------------
[to be completed to identify all Investments made or to be made under Section
10.04(j) (formerly 10.04(h))]
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