Exhibit 10.27
MUTUAL RELEASE
This MUTUAL RELEASE (this "Release") is made this 17 day of July, 2002,
among KAV INVENTORY, LLC, a Delaware limited liability company ("KAV"); BANK OF
AMERICA, N.A. ("BofA"), in its capacity as "Xxxxxxxxx Agent" (as defined below);
each of the Lenders identified on the signature pages below as "Xxxxxxxxx
Lenders" (each a "Xxxxxxxxx Lender" and, collectively, the "Xxxxxxxxx Lenders");
and BANK OF AMERICA, N.A., in its capacity as the "KAV Agent" (as defined below)
and the sole existing "KAV Lender" (as defined below).
Preamble:
Xxxxxxxxx Industries, Inc. ("Xxxxxxxxx") and certain of its
subsidiaries (together with Xxxxxxxxx, the "Borrowers") entered into a certain
Amended and Restated Loan and Security Agreement dated as of December 14, 1998
(as amended, restated, supplemented or otherwise modified from time to time, the
"Xxxxxxxxx Loan Agreement"), with various financial institutions as lenders (the
"Xxxxxxxxx Lenders"), BofA as agent for the Xxxxxxxxx Lenders (in such capacity,
the "Xxxxxxxxx Agent"), and Banc of America Securities LLC as syndication agent
(in such capacity, the "Syndication Agent"), pursuant to which Xxxxxxxxx Lenders
from time to time made loans to Borrowers secured by all or substantially all of
each Borrower's assets.
KAV entered into a certain Loan and Security Agreement dated as of
December 1, 2000 (as amended, restated, supplemented or otherwise modified from
time to time, the "KAV Loan Agreement"), with various financial institutions as
lenders (the "KAV Lenders"), BofA as agent for the KAV Lenders (in such
capacity, the "KAV Agent"), pursuant to which the KAV Lenders from time to time
made loans to KAV secured by all or substantially all of KAV's assets. As of the
date hereof, BofA is the only KAV Lender.
On or about December 1, 2000, Xxxxxxxxx and KAV entered into a certain
Consignment Agreement (as amended, restated, supplemented or otherwise modified
from time to time, the "KAV Consignment Agreement"), pursuant to which, among
other things, KAV consigned to Xxxxxxxxx, as consignee, certain inventory of
aircraft parts and engines owned by KAV.
Xxxxxxxxx, XXXXX Aviation Services, Inc., a Delaware corporation
formerly known as Aviation Sales Company, and Aviation Sales Distribution
Services Company, a Delaware corporation, are parties to a certain Post-Closing
Resolution Agreement dated as of June 10, 2002 (as at any time amended, the
"Resolution Agreement"), pursuant to which, subject to the approval of the
United States Bankruptcy Court for the District of Delaware and satisfaction of
all conditions precedent set forth therein, the parties have agreed to settle
various claims that each party thereto may have against the others.
In connection with the Resolution Agreement, Xxxxxxxxx Agent, Xxxxxxxxx
Lenders and various other parties are entering into a Proceeds Sharing Agreement
dated July __, 2002 (the "Sharing Agreement"), thee effectiveness of which is
condition precedent to the Xxxxxxxxx Agent and Xxxxxxxxx Lenders consenting to
Xxxxxxxxx'x entry into the Resolution Agreement. A condition to the
effectiveness of the agreements contained in the Sharing Agreement is the
execution and delivery of this Release by the parties hereto.
The parties hereto desire that the Resolution Agreement and the Sharing
Agreement becomes effective and, therefore, are willing to execute this Release
to release certain disputes and claims as described below.
NOW, THEREFORE, in consideration of the premises and the mutual
releases and covenants contained herein, the parties hereto, intending to be
legally bound hereby, agree as follows:
Section 1. Definitions. As used herein, the following terms shall have
the following meanings ascribed to them:
"Bank Group Members" shall mean, collectively, the Xxxxxxxxx
Bank Group Members and the KAV Bank Group Members, and, for purposes of
Section 2 of this Release, their respective officers, directors,
agents, attorneys, shareholders, subsidiaries, affiliates, successors
and assigns.
"KAV Bank Group Members" shall mean KAV Agent and KAV Lenders.
"KAV Consigned Inventory" shall mean all aircraft parts,
engines and other inventory at any time consigned by KAV to Xxxxxxxxx
pursuant to the KAV Consignment Agreement.
"Xxxxxxxxx Bank Group Members" shall mean Xxxxxxxxx Agent,
Syndication Agent and Xxxxxxxxx Lenders.
"Claim" shall mean (i) a right to payment, whether or not such
right is reduced to judgment, liquidated, unliquidated, fixed,
contingent, matured, unmatured, disputed, undisputed, legal, equitable,
secured or unsecured; or (ii) a right to an equitable remedy for breach
of performance if such breach gives rise to a right to payment, whether
or not such right to an equitable remedy is reduced to judgment, fixed,
contingent, matured, unmatured, disputed, undisputed, secured or
unsecured.
"Party" shall mean any or entity that is a party to this
Release.
Section 2. Release of Bank Group Members. KAV, for itself and its
successors and assigns, hereby releases, acquits and forever discharges each of
the Bank Group Members of and from any and all Claims of any nature whatsoever
arising prior to or on the date hereof, which KAV ever had, now has or claims to
have against the Bank Group Members, or any one or more of them, or which KAV at
any time hereafter acquires, by reason of any matter, cause or thing arising out
of or relating to (a) the KAV Consignment Agreement, (b) the sale or other
disposition by Xxxxxxxxx of any of the KAV Consigned Inventory, (c) the
administration by the Xxxxxxxxx Bank Group Members of the Xxxxxxxxx Loan
Agreement and related documents (including, without limitation, the funding or
withholding of loans or other extensions of credit thereunder at any time), (d)
the administration by the KAV Bank Group Members of the KAV Loan Agreement
(including, without limitation, the funding or withholding of loans thereunder
at any time), or (e) the receipt by any of the Xxxxxxxxx Bank Group Members of
any payments or other proceeds from the sale or other disposition of any of the
KAV Consigned Inventory; provided, however, that the foregoing provisions of
this Section 2 shall not be deemed in any manner whatsoever to release, waive or
otherwise affect any liability of any Bank Group Member in respect of any Claim
arising solely under this Release.
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Section 3. Release of KAV. Each of the Bank Group Members, for itself
and its respective successors and assigns, hereby releases, acquits and forever
discharges KAV of and from any and all Claims of any nature whatsoever arising
prior to or on the date hereof, which any of the Bank Group Members ever had,
now have or claim to have against KAV, or which any of the Bank Group Members at
any time hereafter acquires, by reason of any matter, cause or thing arising out
of or relating to the KAV Consignment Agreement or the sale or other disposition
by Xxxxxxxxx of any of the KAV Consigned Inventory; provided, however, that the
foregoing provisions of this Section 3 shall not be deemed in any manner
whatsoever to (a) release, waive or otherwise affect any liability of KAV in
respect of any Claim arising solely under this Release or (b) constitute or
effect a release by any of the KAV Bank Group Members of any liability of KAV to
them, or any of them, under or in connection with the KAV Loan Agreement. the
KAV Consignment Agreement or the Xxxxxxxxx Loan Agreement. KAV shall in all
events remain liable to the KAV Bank Group Members under the KAV Loan Agreement,
which shall remain in full force and effect and shall be unaffected by this
Release.
Section 4. Covenant Not To Xxx. Each Party, for and on behalf of such
Party and for each of such Party's respective successors, assigns and personal
representatives, covenants and agrees never to commence, aid in any way,
prosecute or cause to be commenced or prosecuted, or permit any of its
subsidiaries or affiliates to commence or prosecute, against any other Party
hereto, any action, suit or other proceeding based upon a Claim that has been
released pursuant to the terms of this Release.
Section 5. Representations and Warranties. Each Bank Group Member
hereby represents and warrants to KAV that such Bank Group Member is duly
authorized and empowered to execute this Release; that it has taken such actions
as may be required to obtain corporate or shareholder approval for the execution
and delivery of this Release; that the individual signing on its behalf below is
duly authorized and empowered to execute this Release; and that it has not sold,
assigned, transferred, conveyed or otherwise disposed of any Claim relating to
any matter covered by this Release. KAV hereby represents and warrants to each
Bank Group Member that KAV is duly authorized and empowered to execute this
Release; that it has taken such action as may be required to obtain internal
approval for the execution and delivery of this Release; that the individual
signing on its behalf is duly authorized and empowered to execute this Release
for and on behalf of KAV; and that it has not sold, assigned, transferred,
conveyed or otherwise disposed of any Claim relating to any matter covered by
this Release. Each Party represents and warrants to each of the other Parties
hereto that such representing and warranting Party has freely and voluntarily
entered into and executed this Release, with the benefit of advice of counsel of
such Party's own selection.
Section 6. No Admission. This Release is made without admission or
concession by any Party of any liability whatsoever on the part of such Party to
any other Party. Without limiting the generality of the foregoing, each of the
Xxxxxxxxx Bank Group Members expressly disputes the existence of any Claim in
favor of KAV or any other person or entity arising out of or relating to any
failure or refusal by any of the Xxxxxxxxx Bank Group Members to make loans or
other extensions of credit to or for the benefit of Xxxxxxxxx to enable
Xxxxxxxxx to pay sums due to KAV pursuant to the KAV Consignment Agreement or
otherwise.
Section 7. Acknowledgments. Each Party acknowledges and agrees that no
other consideration has been or will be paid or furnished to such Party on
account of or in connection with such Party's execution and delivery of this
Release and that such Party has not made or relied upon any other warranty or
representation or promise except as expressly set forth in this Release.
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Section 8. Mistake of Fact. If any fact with respect to which this
Release is executed is hereafter found to be other than or different from what
is now believed by any Party to be true, each Party hereto accepts and assumes
the risk of such possible difference in fact and agrees that this Release shall
be and remain effective, notwithstanding such difference in facts.
Section 9. Complete Defense. This Release shall be a full and complete
defense to and may be used as the basis for an injunction against any action,
suit, or other proceeding that may be instituted, prosecuted or attempted in
breach of this Release.
Section 10. Execution; Effectiveness; Waiver of Jury Trial. This
Release 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 counterparts taken together
shall constitute but one and the same instrument. In proving this Release in any
judicial proceeding, it shall not be necessary to produce or account for more
than one such counterpart signed by the party against whom such enforcement is
sought. Any signature delivered by a party by facsimile transmission shall be
deemed to be an original signature hereto. The effectiveness of this Release is
subject to the execution and delivery of this Release by each Party shown on the
signature pages hereof. Each of the Parties hereby waives any right that such
Party may have to a trial by jury in respect of any litigation based hereon, or
arising out of, under or in connection with this Release, and this provision is
material inducement for this Release.
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Section 11. Miscellaneous. This Agreement expresses the entire
understanding of the Parties with respect to the subject matter hereof and
thereof and supersedes any and all prior agreements or understandings, written
or oral, express or implied; may not be amended except by written agreement of
the Parties; shall be binding upon the parties hereto and their respective
successors and assigns; and shall be governed in all respects by and construed
in accordance with the internal laws of the State of Georgia.
IN WITNESS WHEREOF, the Parties have caused this Release to be signed,
sealed, and delivered on the day and year first above written.
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[Signature Pages Ommitted]
