EXHIBIT 10.5
AMENDMENT NO. 4, CONSENT AND WAIVER
Dated as of February 14, 2001
to
FOURTH AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of May 31, 2000
This Amendment No. 4, Consent and Waiver (the "Amendment") dated as of
February 14, 2001 is entered into among AVIATION SALES DISTRIBUTION SERVICES
COMPANY, a Delaware corporation ("Distribution"), AEROCELL STRUCTURES, INC., an
Arkansas corporation ("Aerocell"), AVS/M-2, INC. (formerly known as
AVS/Xxxxx-Xxxxx Machine Company), a Delaware corporation ("Xxxxx-Xxxxx"),
WHITEHALL CORPORATION, a Delaware corporation ("Whitehall"), TRIAD INTERNATIONAL
MAINTENANCE CORPORATION, a Delaware corporation ("TIMCO"), AVS/M-3, INC.
(formerly Apex Manufacturing, Inc.), an Arizona corporation ("Apex"), CARIBE
AVIATION, INC., a Florida corporation ("Caribe"), AIRCRAFT INTERIOR DESIGN,
INC., a Florida corporation ("Design"), AVIATION SALES LEASING COMPANY, a
Delaware corporation ("Leasing"), TIMCO ENGINE CENTER, INC., a Delaware
corporation ("TIMCO Engine"), and AVIATION SALES COMPANY, a Delaware corporation
("Parent"), and the "Lenders" (as defined in the Credit Agreement identified
below) a party hereto. Capitalized terms used herein without definition are used
herein as defined in the Credit Agreement.
PRELIMINARY STATEMENT:
WHEREAS, Distribution, Aerocell, Xxxxx-Xxxxx, Whitehall, TIMCO, Apex,
Caribe, Design, Leasing, and TIMCO Engine, as Borrowers, Parent, Citicorp USA,
Inc., as Agent, and certain financial institutions, as Lenders and Issuing
Banks, are parties to that certain Fourth Amended and Restated Credit Agreement
dated as of May 31, 2000, as heretofore amended (the "Credit Agreement");
WHEREAS, the Borrowers have requested the amendment of certain
financial covenants included in the Credit Agreement, the waiver of certain
Events of Default, and modification of certain other terms of the Credit
Agreement, and the Lenders a party hereto have agreed to the same on the terms
and conditions set forth herein;
NOW, THEREFORE, the parties hereto hereby agree as follows:
SECTION 1. Amendments to the Credit Agreement.
Effective as of February 14, 2001, 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 hereby amended to (i) delete the definitions
therein of "Borrowing Base" and "Designated Prepayment" and substitute the
following therefor:
"Borrowing Base" means, as of any date of determination, an amount
equal to the sum of:
(i) up to seventy-five percent (75%) of the face amount of Eligible
Receivables of Aerocell (net of maximum discounts, allowances,
retainage and any other amounts deferred with respect thereto), plus
(ii) up to fifty percent (50%) of the face amount of Eligible
Receivables of Caribe and Design (net of maximum discounts, allowances,
retainage and any other amounts deferred with respect thereto), plus
(iii) up to eighty-five percent (85%) of the face amount of Eligible
Receivables of TIMCO (net of maximum discounts, allowances, retainage
and any other amounts deferred with respect thereto), plus
(iv) up to fifty percent (50%) of the face amount of earned, but
unbilled for periods less than sixty-one (61) days, Receivables of
TIMCO (net of maximum discounts, allowances, retainage and any other
amounts deferred with respect thereto) and arising with respect to
sales of Inventory other than ABX Kits and services performed, plus
(v) up to fifty percent (50%) of the face amount of earned, but
unbilled Receivables of TIMCO (net of maximum discounts, allowances,
retainage and any other amounts deferred with respect thereto) arising
with respect to sales of ABX Kits the shipment of which is scheduled to
occur within ninety (90) days after the date of the ABX Shipping
Schedule attached to the corresponding Borrowing Base Certificate, plus
(vi) up to sixty-two percent (62%) of the book value of Eligible
Inventory of Caribe (other than Eligible Inventory transferred to
Caribe by Bearings substantially concurrent with the Bearings Sale),
plus
(vii) $2,639,000 (based on Inventory of Distribution identified on the
Borrowing Base Certificate dated February 5, 2001 as "Distribution
Inventory - 12/31/00 book value $4,256,000); provided, however, that
such $2,639,000 of availability shall be reduced by $188,500 per week,
commencing February 16, 2001 and continuing on each Friday thereafter
until May 18, 2001, as of which date the availability under this clause
(vii) shall be zero, plus
(viii) up to forty percent (40%) of the book value (net of maintenance
reserves) of Eligible Inventory of Distribution consisting of engines
not included as part of Eligible Aircraft, plus
(ix) up to forty-four percent (44%) of the book value of Eligible
Inventory of Distribution consisting of Leased Inventory; plus
(x) with respect to Eligible Aircraft, (a) $10,000,000 with respect to
each of such Eligible Aircraft which are cargo configured and (b)
$2,000,000 with respect to such Eligible Aircraft which is not cargo
configured; provided, however, that in
2
no event shall the amount of the Borrowing Base determined under this
clause (viii) exceed at any time the lesser of the amount of (1) the
Aircraft Availability Cap at the time of designation and (2) the sum of
(a) and (b) above, plus
(xi) up to sixty percent (60%) of the book value of Eligible Inventory
of Leasing consisting of landing gear, plus
(xii) up to fifty-five percent (55%) of the book value of Eligible
Inventory of Caribe which, prior to the Bearings Sale, was Eligible
Inventory of Bearings which was acquired after November 30, 1997, plus
(xiii) up to forty percent (40%) of the book value of Eligible
Inventory of Aerocell, plus;
(xiv) up to forty percent (40%) of the book value of Eligible Inventory
of TIMCO consisting of aircraft spare parts held for re-sale and up to
twenty-five percent (25%) of the book value of Eligible Inventory of
TIMCO consisting of aircraft spare parts held for maintenance, plus
(xv) without duplication as to clause (xii) above, up to thirty-five
percent (35%) of the book value of Eligible Inventory of TIMCO located
at Lake City and up to thirty percent (30%) of the book value of
Eligible Inventory of TIMCO located at Xxxxx, Xxxxxxx-Salem and Oscoda;
(xvi) up to twenty-five percent (25%) of the book value of Eligible
Inventory of Design, plus
(xvii) up to fifty percent (50%) of the appraised fair market value of
Xxxxx-Xxxxx'x owned Real Property, plus
(xviii) $2,435,000 (based on TIMCO 777 aircraft modification contracts
for which deposits against unissued invoices have been received);
provided, however, that such $2,435,000 of availability shall be
reduced by $173,928 per week, commencing February 16, 2001 and
continuing on each Friday thereafter until May 18, 2001, as of which
date the availability under this clause (xviii) shall be zero, plus
(xix) $141,000 (based on accrued revenues for TIMCO relating to ABX
Kits); provided, however, that such $141,000 of availability shall be
reduced by $10,071 per week, commencing February 16, 2001 and
continuing on each Friday thereafter until May 18, 2001, as of which
date the availability under this clause (xviii) shall be zero, plus
(xx) $247,000 of Receivables of Design arising with respect to certain
maintenance contracts which would not otherwise be Eligible Receivables
due to cross-aging; provided, however, that such $247,000 of
availability shall be reduced by $17,643 per week, commencing February
16, 2001 and continuing on each Friday thereafter until May 18, 2001,
as of which date the availability under this clause (xviii) shall be
zero, plus
(xxi) Amounts on deposit with TIMCO with respect to aircraft service
orders upon execution of a maintenance agreement or upon delivery of
the subject aircraft to a TIMCO facility for maintenance, repair and
overhaul services;
3
provided, however, that in the event any such deposit is for an amount
greater than $500,000, inclusion in the Borrowing Base shall be
permitted only upon review of the underlying circumstances by the
Agent's field examiners, plus
(xxii) the outstanding balance of the Overadvance Amount as of such
date of determination; minus
(xxiii) the Interest Reserve; minus
(xxiv) the reserve, if any, applicable under Section 4.01(b)(viii)(D).
For purposes of this definition, (1) Eligible Receivables and Eligible
Inventory, in each case and as of any date of determination, shall be
determined after deduction of all Eligibility Reserves then effective
with respect to such items, (2) the book value referenced shall be
determined on the bases described in the Borrowing Base Certificate as
reflected on the books and records of the Borrowers and, in the case of
engines owned as of December 31, 1999, subject to a valuation reserve
based upon the writedown taken with respect thereto in the Parent's and
its Subsidiaries' Financial Statements for December 31, 1999, (3) the
gross value of Leased Inventory from which the Borrowing Base is
determined shall in no event exceed, at any time, $15,000,000 in the
aggregate, and (4) the appraised values referenced in clause (xvii)
shall be based from time to time on the then most recently prepared
appraisal delivered to the Agent. In each instance, the amounts
described hereinabove shall be designated as such on the Borrowing Base
Certificate dated as of such date of determination. Notwithstanding
anything herein to the contrary, from and after the date on which
written notice thereof is delivered to the Borrowers by the Agent and
Requisite Lenders, the respective advance rates specified above for any
Inventory shall be determined by the Agent and Requisite Lenders based
on the results of an appraisal thereof by Aviation Asset Management,
Inc., which results shall be delivered by no later than March 15, 2001.
In no event shall the aggregate availability under clauses (iv) and (v)
above exceed $15,000,000.
"Designated Prepayment" means each mandatory prepayment required by
clauses (i), (ii) and (iv) of Section 4.01(b).
and (ii) add the following definitions thereto:
"BofA Note" means that certain Term Loan Note dated February 14, 2001
in the principal amount of $10,000,000 executed by the Borrowers and
payable to Bank of America, N.A.
"Cash Flow Event" means the cash-generating events identified on
Schedule 1.01.11 attached hereto and made a part hereof.
"Restructure Fee Payment Dates" means August 14, 2001, November 14,
2001, and February 14, 2002, each of which shall be a "Restructure Fee
Payment Date".
4
1.2 Section 2.4 is hereby amended to delete the provisions thereof in
their entirety and substitute the following therefor:
2.4 Reduction of Overadvance Amount. The remaining balance of the
Overadvance Amount is $1,117,000, which amount shall be reduced (either
in cash or by adjustment of the Borrowing Base) in thirteen (13) equal
weekly installments in the amount of $79,785 each during the period
commencing on February 16, 2001 and continuing on each Friday
thereafter to and including May 11, 2001 and a final installment in the
amount of $79,795 on May 18, 2001, which reductions shall be applied
proportionately to each Lender's Pro Rata Share of the Overadvance
Amount in accordance with its Pro Rata Share of such installment.
1.3 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. Immediately upon the receipt by any
Borrower or Guarantor of any Net Cash Proceeds of Sale (other than from
any Cash Flow Event), 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.
(ii) Net Cash Proceeds of Issuance of Equity Securities or
Indebtedness. Immediately upon the receipt by any Borrower or Guarantor
of any Net Cash Proceeds of Issuance of Equity Securities or Net Cash
Proceeds of Issuance of Indebtedness (other than Indebtedness under the
BofA Note), 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 Issuance of Equity Securities or
Indebtedness.
(iii) Insufficient Collateral. The Borrowers shall, immediately and
without notice or demand of any kind, make repayments of the Loans to
the extent necessary to reduce the outstanding principal amount of the
Revolving Credit Obligations to an amount not to exceed the Borrowing
Base.
(iv) Proceeds of Cash Flow Events. Immediately upon the receipt by any
Borrower or Guarantor of proceeds of any Cash Flow Event, 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
proceeds.
(v) 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), (ii) and (iv) above which is not expressly
permitted by Article X.
(vi) Notice. Distribution shall give the Agent prior written notice or
telephonic notice promptly confirmed in writing (each of which the
Agent shall promptly
5
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)).
(vii) Application of Prepayments.
(A) Designated Prepayments shall be allocated and applied first to the
outstanding Loans as more particularly described in clauses (C), (D),
(E) and (F) below and, following the payment in full of the 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).
(B) Prepayments required by Section 4.01(b)(iii) shall be allocated and
applied to the Loans ratably based on the then outstanding principal
balance thereof until paid in full.
(C) Designated Prepayments made as provided in Section 4.01(b)(i) shall
be allocated (1) first to reduce outstanding Loans by the amount
thereof attributable to the Property giving rise to such Net Cash
Proceeds of Sale or a portion thereof, (2) second to the Overadvance
Amount (in the inverse order of the amortization schedule set forth in
Section 2.04) until reduced to zero, and (3) third to reduce the
remaining outstanding balance of the Revolving Credit Obligations.
(D) Designated Prepayments made with respect to Net Cash Proceeds of
Issuance of Equity Securities shall be allocated first to the
Overadvance Amount (in the inverse order of the amortization schedule
set forth in Section 2.04) until reduced to zero and then to reduce the
remaining outstanding balance of the Revolving Credit Obligations.
(E) Designated Prepayments made with respect to Net Cash Proceeds of
Issuance of Indebtedness shall be allocated first to the Overadvance
Amount (in the inverse order of the amortization schedule set forth in
Section 2.04) until reduced to zero and then to reduce the remaining
outstanding balance of the Revolving Credit Obligations.
(F) Designated Prepayments made with respect to Cash Flow Events shall
be allocated to reduce the outstanding balance of the Revolving Credit
Obligations.
(viii) Reduction of Revolving Credit Commitments; Borrowing Base
Reserve.
(A) Until such time as the Overadvance Amount is reduced to zero, the
Revolving Credit Commitments will be permanently reduced by an amount
equal to the amount of Net Cash Proceeds of Sale (other than from a
Cash Flow Event), Net Cash Proceeds of Issuance of Equity and Net Cash
Proceeds of Issuance of Indebtedness (other than Indebtedness under the
BofA Note), as applicable, received by any Borrower or Guarantor, and
the Revolving Credit Commitment of each Lender shall thereupon be
reduced proportionately in accordance with its Pro Rata Share thereof.
6
(B) Until such time as the Overadvance Amount is reduced to zero, the
Revolving Credit Commitments will be permanently reduced by an amount
equal to fifty percent (50%) of the proceeds received by any Borrower
or Guarantor from any Cash Flow Event and the Revolving Credit
Commitment of each Lender shall thereupon be reduced proportionately in
accordance with its Pro Rata Share thereof.
(C) From and after the time of reduction of the Overadvance Amount to
zero, the Revolving Credit Commitments will be permanently reduced by
an amount equal to fifty percent (50%) of the amount of Net Cash
Proceeds of Sale (other than Cash Flow Events), Net Cash Proceeds of
Issuance of Indebtedness, and proceeds of Cash Flow Events, as
applicable, received by any Borrower or Guarantor and, in each
instance, the Revolving Credit Commitment of each Lender shall
thereupon be reduced proportionately in accordance with its Pro Rata
Share thereof.
(D) Upon receipt of any proceeds by any Borrower or Guarantor from any
Cash Flow Event (other than the sale of the Xxxxx-Xxxxx Kentucky Real
Property), a reserve against the Borrowing Base shall immediately be
imposed in the amount equal to fifty percent (50%) of such proceeds.
1.4 Article X is hereby amended to delete the provisions of Section
10.18 in their entirety and substitute the following therefor:
10.18. Supplemental Term Loan Installment Payments. The Borrowers shall
not make any scheduled payment of principal under the terms of the
Supplemental Term Loan Note at a time when (a) any of the Overadvance
Amount remains outstanding or (b) an Event of Default would occur as a
result of such payment after giving effect thereto.
1.5 Article XI is hereby amended to delete the provisions thereof in
their entirety and substitute the following therefor:
ARTICLE XI
FINANCIAL COVENANTS
The Parent covenants and agrees that so long as any Revolving Credit
Commitments are outstanding and thereafter until payment in full of all of the
Obligations (other than indemnities not yet due):
11.01 Minimum EBITDA. The Parent shall maintain EBITDA, determined as of
the last day of each Fiscal Quarter set forth below for the period then ending
described below, of at least the amount set forth below opposite such date of
determination:
Determination Date Applicable Period Minimum EBITDA
------------------ ----------------- --------------
March 31, 2001 January 1, 2001 - March 31, 2001 $4,052,000
7
June 30, 2001 January 1, 2001 - June 30, 2001 $12,020,000
September 30, 2001 January 1, 2001 - September 30, 2001 $20,605,000
December 31, 2001 January 1, 2001 - December 31, 2001 $27,856,000
March 31, 2002 April 1, 2001 - March 31, 2002 $27,856,000
June 30, 2002 July 1, 2001 - June 30, 2002 $27,856,000
11.02 Capital Expenditures. The Parent and its Subsidiaries shall not make
Capital Expenditures in the aggregate during any period set forth below in
excess of the amount set forth below opposite such period; (in each instance,
the "Maximum Amount"):
Determination Date Applicable Period Minimum Amount
------------------ ----------------- --------------
March 31, 2001 Fiscal Quarter then ending $1,799,000
June 30, 2001 Two Fiscal Quarter period then ending $2,991,000
September 30, 2001 Three Fiscal Quarter period then ending $4,183,000
December 31, 2001 Four Fiscal Quarter period then ending $5,375,000
March 31, 2002 Four Fiscal Quarter period then ending $5,375,000
June 30, 2002 Four Fiscal Quarter period then ending $5,375,000
provided, however, to the extent the Parent and its Subsidiaries have not made
Capital Expenditures in the amount permitted above for any given period set
forth above, Capital Expenditures in an amount equal to 100% of the Maximum
Amount of such Capital Expenditures permitted but not made in such period may be
made in the immediately next succeeding period in addition to any amounts
permitted above for such succeeding period; provided that to the extent amounts
carried forward from one period to the next succeeding period are not expended
in such period, such surplus may not be carried forward to any other succeeding
period.
11.03 Fixed Charge Coverage Ratio. The Parent shall maintain a Fixed Charge
Coverage Ratio for the Parent and its Subsidiaries, as determined as of the last
day of each Fiscal Quarter set forth below for the period then ending described
below, of at least the level set forth below opposite such determination date:
Determination Date Applicable Period Minimum Ratio
------------------ ----------------- -------------
March 31, 2001 Fiscal Quarter then ending 0.29 to 1.00
June 30, 2001 Two Fiscal Quarter period then ending 0.89 to 1.00
September 30, 2001 Three Fiscal Quarter period then ending 0.84 to 1.00
December 31, 2001 Four Fiscal Quarter period then ending 1.02 to 1.00
March 31, 2002 Four Fiscal Quarter period then ending 1.02 to 1.00
June 30, 2002 Four Fiscal Quarter period then ending 1.02 to 1.00
8
11.04 Minimum Tangible Net Worth. The Parent shall maintain a Tangible Net
Worth of at least the amount set forth below for the Fiscal Quarter ending
during the period set forth below opposite such amount.
Fiscal Quarter Ending Minimum Tangible Net Worth
--------------------- --------------------------
March 31, 2001 $8,208,000
June 30, 2001 $7,800,000
September 30, 2001 $8,544,000
December 31, 2001 $8,906,000
March 31, 2002 $8,906,000
June 30, 2002 $8,906,000
11.05 Parent and Subsidiaries. For purposes of the covenants set forth in
this Article XI, references to Parent and its Subsidiaries shall be deemed to
mean Parent and its Subsidiaries on a consolidated basis.
1.6 Section 5.02 is amended to add the following provision as clause
(f) thereof:
(f) Restructure Fee. In the event any Obligations are outstanding on a
Restructure Fee Payment Date and this Agreement and the other Loan
Documents then remain in effect, the Borrowers shall pay to the Agent
on such Restructure Fee Payment Date, for the account of the Lenders
(as of such Restructure Fee Payment Date) in accordance with their
respective Pro Rata Shares, a fee in the amount equal to two percent
(2.0%) of the Revolving Credit Commitments in effect on such
Restructure Fee Payment Date. Such fee shall (i) be payable to the
Agent at its office in New York, New York in immediately available
funds, (ii) be fully earned and nonrefundable when paid, (iii) be in
addition to, and not in lieu of, interest, compensation, expense
reimbursements, indemnification and other Obligations payable under the
terms of the Loan Documents, (iv) bear interest, if not paid when due,
at the interest rate described in Section 5.01(c), (v) constitute
Obligations, and (vi) secured by all of the Collateral. Upon payment in
full of the fee required under Section 5.02(c)(ii), the amount payable
under this Section 5.02(f) on August 14, 2001 shall be reduced by the
amount of such fee.
SECTION 2. Waiver and Consent. Effective as of February 14, 2001,
2.1 subject to Agent's receipt of the consent and waiver referenced in
Section 3.1(b) below on or before February 14, 2001, the Lenders signatory
hereto representing the Requisite Lenders hereby consent to the amendment of the
TROL Documents on the terms and conditions referenced on or attached hereto as
Exhibit A and made a part hereof;
2.2 the Lenders signatory hereto representing the Requisite Lenders
hereby waive all rights and remedies under the terms of the Credit Agreement
arising due to the occurrence of the Events of Default identified on Exhibit B
attached hereto and made a part hereof;
9
2.3 the Lenders signatory hereto representing the Requisite Lenders
hereby consent to the incurrence by the Borrowers of the Indebtedness evidenced
by that certain promissory note, a copy of which is attached hereto as part of
Exhibit C and made a part hereof (the "BofA Note"), the incurrence by the
Guarantors of the Indebtedness evidenced by that certain guaranty of the BofA
Note, a copy of which is attached hereto as part of Exhibit C (the "BofA
Guaranty"), and the amendment of the Collateral Documents Amendment on the terms
set forth in an agreement, in the form attached hereto as Exhibit D and made a
part hereof (the "Second Collateral Documents Amendment"), to include the holder
of the BofA Note as beneficiary of the Liens granted to the Agent for the
benefit of the Holders on the terms set forth therein; provided that (a) such
proceeds are received no later than February 15, 2001 in immediately available
funds, (b) such proceeds are used solely for the purposes of enabling the Parent
to pay its obligation under the Senior Subordinated Notes for interest payable
in accordance with the terms of the Senior Subordinated Notes on February 15,
2001 and for working capital of the Borrowers, (c) no proceeds of the Loans are
used for the purpose of paying any interest due on February 15, 2001 under the
Senior Subordinated Notes, (d) the BofA Note, Second Collateral Documents
Amendment, and an Intercreditor Agreement in the form attached hereto as Exhibit
E and made a part hereof (the "Intercreditor Agreement") are executed and
delivered no later than February 14, 2001 and (e) none of the BofA Note, the
BofA Guaranty, the Second Collateral Documents Amendment, or the Intercreditor
Agreement shall be amended after the date hereof without the prior written
consent of the Requisite Lenders, the holder of the Supplemental Term Loan Note,
and the Agent; and
SECTION 3. Conditions Precedent. This Amendment shall become effective,
if, and only if:
3.1 the Agent shall have received on or before February 14, 2001:
(a) a facsimile or original executed copy of this Amendment executed by
the Parent, each Borrower, and Super-Majority Lenders;
(b) a facsimile or original executed copy of a Release Agreement and a
Reaffirmation Agreement in the respective forms attached hereto as
Exhibit F and made a part hereof executed by the Borrowers, each
Guarantor and (with respect to the Release Agreement, the Affiliates
named therein);
(c) a written consent of the obligee parties to the TROL Documents to
the terms of this Amendment, an amendment of the covenants set forth in
the TROL Documents to be no more restrictive that those set forth
herein on an amended basis, and a waiver of all existing defaults and
events of default under the TROL Documents as of the date hereof, in
each instance, in form and substance satisfactory to the Agent;
(d) an opinion of counsel to the Borrowers and Parent with respect to
non-contravention of the TROL Documents and agreements under which the
Senior Subordinated Notes have been issued, this Amendment and the
instruments and documents executed by the Borrowers and Guarantors in
connection herewith;
10
(e) corporate resolutions of the Parent, Borrowers and Guarantors
authorizing the execution and delivery of this Amendment and all
instruments and documents required to be executed and delivered in
connection herewith;
(f) from the Borrowers, reimbursement for the expenses of the Agent
identified on Exhibit G attached hereto and made a part hereof;
(g) a facsimile or original executed copy of the written consent of the
holder of the Supplemental Term Loan Note to the terms of this
Amendment and a waiver of the Events of Default identified on Exhibit B
under the Supplemental Term Loan Note; and
(h) a facsimile or original executed copy of a Note Modification
Agreement in the form attached hereto as Exhibit H and made a part
hereof.
3.2 after giving effect to this Amendment and any amendment of the TROL
Documents, as of February 14, 2001, no "Event of Default" shall have occurred
and be continuing under the terms of the Credit Agreement, TROL Documents,
Indenture under which the Senior Subordinated Notes have been issued, as amended
or supplemented through the date of this Amendment and no "Change of Control"
(as defined in such Indenture) shall have occurred.
SECTION 4. Notice. Effective immediately, the notice address for the
Borrower and Guarantors is as set forth below:
11
0000 Xxxxxxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
Attn: Chief Financial Officer
Telecopier No.: (000) 000-0000
with a copy to:
Akerman, Senterfitt & Xxxxxx, P.A.
Xxx Xxxxxxxxx Xxxxx Xxxxxx
00xx Xxxxx
Xxxxx, Xxxxxxx 00000-0000
Attn: Xxxxxx X. Xxxxxxxx
Telecopier No.: (000) 000-0000
E-mail: xxxxxxxxx@xxxxxxx.xxx
and the notice address for the Agent and Citicorp USA, Inc., as a Lender, is as
set forth below:
Citicorp USA, Inc.
000 Xxxxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx X. Xxxxxxx
Telecopier No.: (000) 000-0000
E-mail: xxxxx.x.xxxxxxx@xxxxxxxx.xxx
with a copy to:
Sidley & Austin
Bank One Plaza
00 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: XxXxxxxxx X. Xxxxxx
Telecopier No.: (000) 000-0000
E-mail: xxxxxxx@xxxxxx.xxx
SECTION 5. Representations and Warranties; Acknowledgment. The
Borrowers hereby represent and warrant as follows:
5.1 This Amendment and the Credit Agreement as previously executed and
delivered and as amended hereby constitute legal, valid and binding obligations
of the Borrowers and are enforceable against the Borrowers in accordance with
their terms.
5.2 After giving effect to this Amendment, no Event of Default or
Potential Event of Default exists or would result from any of the transactions
contemplated by this Amendment. No event of default or default has occurred and
is continuing under the terms of (a) any of the
12
TROL Documents after giving effect to the amendment to and consent and waiver
under the TROL Documents in the form attached hereto as Exhibit A or (b) under
any of the agreements and documents executed with respect to the Senior
Subordinated Notes or under which the Senior Subordinated Notes have been
issued.
5.3 Upon the effectiveness of this Amendment, Parent and each of the
Borrowers hereby reaffirm all covenants, representations and warranties made by
it, respectively, in the Credit Agreement to the extent the same are not amended
hereby and agree that all such covenants, representations and warranties shall
be deemed to have been remade as of the date this Amendment becomes effective
(unless a representation and warranty is stated to be given on and as of a
specific date, in which case such representation and warranty shall be true,
correct and complete as of such date).
SECTION 6. Reference to and Effect on the Credit Agreement.
6.1 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, 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.
6.2 Except as specifically amended or agreed above, the Credit
Agreement, the Notes and all other Loan Documents shall remain in full force and
effect and are hereby ratified and confirmed.
6.3 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 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 7. 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 8. Governing Law. This Amendment shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 9. 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.
[Remainder of Page Intentionally Left Blank]
13
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.
CITICORP USA, INC. XXXXXX FINANCIAL, INC.
/s/ By: /s/
------------------------------- ----------------------------
Name: Name:
Title: Title:
NATIONAL CITY COMMERCIAL
FINANCE, INC.
By: /s/
----------------------------
Name:
Title:
FIRST UNION COMMERCIAL SALOMON BROTHERS HOLDING
CORPORATION COMPANY, INC.
By: /s/ By: /s/
---------------------------- ----------------------------
Name: Name:
Title: Title:
IBJ WHITEHALL BUSINESS CREDIT ARK CLO 2000-I, LIMITED
CORPORATION By: Patriarch Partners, LLC, as
Attorney-in-Fact
By: LD Investments LLC, as Manager
By: /s/ By: /s/
---------------------------- ----------------------------
Name: Name:
Title: Title:
Signature Page 0
XXX XXXXXXXXXXXXX XXXX XX XXXXXXXX XXXX XX XXXXXX
MIAMI, N.A. A Canadian Chartered Bank
By: /s/ By: /s/
---------------------------- ----------------------------
Xxxxxxx X. Xxxxxxxxx Xxx Xxxxxxxxx
Vice President Vice President
Trade Finance Division
By: /s/
----------------------------
Xxxxxxx X. Xxxxxxxxxxx
Vice President & Manager
FIRSTAR BANK, N.A. CITIZENS BUSINESS CREDIT
COMPANY
By: /s/ By: /s/
---------------------------- ----------------------------
Name: Name:
Assistant Vice President Vice President
AMSOUTH BANK PNC BANK NATIONAL ASSOCIATION
By: /s/ By: /s/
---------------------------- ----------------------------
Name: Name:
Title: Title:
Signature Page 2
AVIATION SALES DISTRIBUTION AEROCELL STRUCTURES, INC.
SERVICES COMPANY
By: /s/ XXXXXX XXXXXXX By: /s/ XXXXXX XXXXXXX
---------------------------- ----------------------------
Name: Xxxxxx Xxxxxxx Name: Xxxxxx Xxxxxxx
Title: President Title: Vice President
AVS/M-2, INC. WHITEHALL CORPORATION
By: /s/ XXXXXX XXXXXXX By: /s/ XXXXXX XXXXXXX
---------------------------- ----------------------------
Name: Xxxxxx Xxxxxxx Name: Xxxxxx Xxxxxxx
Title: Vice President Title: Vice President
TRIAD INTERNATIONAL MAINTENANCE AVS/M-3, INC.
CORPORATION
By: /s/ XXXXXX XXXXXXX By: /s/ XXXXXX XXXXXXX
---------------------------- ----------------------------
Name: Xxxxxx Xxxxxxx Name: Xxxxxx Xxxxxxx
Title: Vice President Title: Vice President
AIRCRAFT INTERIOR DESIGN, INC. CARIBE AVIATION, INC.
By: /s/ XXXXXX XXXXXXX By: /s/ XXXXXX XXXXXXX
---------------------------- ----------------------------
Name: Xxxxxx Xxxxxxx Name: Xxxxxx Xxxxxxx
Title: Vice President Title: President
AVIATION SALES COMPANY AVIATION SALES LEASING COMPANY
By: /s/ XXXXXX XXXXXXX By: /s/ XXXXXX XXXXXXX
---------------------------- ----------------------------
Name: Xxxxxx Xxxxxxx Name: Xxxxxx Xxxxxxx
Title: President Title: Vice President
Signature Page 3
TIMCO ENGINE CENTER, INC.
By: /s/ XXXXXX XXXXXXX
----------------------------
Name: Xxxxxx Xxxxxxx
Title: Vice President
Signature Page 4
