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EXHIBIT 10.2
WAIVER AND SIXTH AMENDMENT TO
LOAN AND SECURITY AGREEMENT
THIS WAIVER AND SIXTH AMENDMENT TO LOAN AND SECURITY Agreement (this
"Amendment") is made and entered into as of the 7th day of August, 2000, by and
among BANK OF AMERICA, N.A., formerly NationsBank, N.A., as agent (the "Agent")
for the lenders (the "Lenders") from time to time party to the Loan Agreement
(as hereafter defined), the Lenders, AMERICAN AIRCARRIERS SUPPORT, INCORPORATED,
a Delaware corporation ("AAS"), and the Subsidiaries of AAS party to the Loan
Agreement as borrowers (together with AAS, the "Borrowers").
W I T N E S S E T H :
WHEREAS, the Agent, the Lenders and the Borrowers entered into that
certain Loan and Security Agreement, dated as of May 25, 1999 (as amended from
time to time, the "Loan Agreement"), pursuant to which the Agent and the Lenders
agreed to extend certain financial accommodations to the Borrowers; and
WHEREAS, pursuant to the Loan Agreement, the Borrowers agreed, among
other things, to maintain the outstanding loan balance within a borrowing base
and to comply with certain minimum availability and financial covenants; and
WHEREAS, the Borrowers have allowed the outstanding loan balance to
exceed the borrowing base and have violated and continue to violate the minimum
availability and financial covenants set forth in the Loan Agreement; and
WHEREAS, the Borrowers' agreements to maintain the outstanding loan
balance within a borrowing base, and to comply with certain minimum availability
and financial covenants, were material inducements to the Agent's and the
Lenders' agreement to enter into the Loan Agreement, and the Lenders would not
have agreed to make loans available to the Borrowers without the assurance that
the Borrowers would comply with such agreements; and
WHEREAS, the Borrowers requested that the Agent and the Lenders forbear
from exercising their rights and remedies with respect to such defaults; and
WHEREAS, the Borrowers, the Agent and the Lenders entered into that
certain Fifth Amendment and Forbearance Agreement dated as of June 22, 2000 (the
"Forbearance
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Agreement"), pursuant to which the Agent and the Lenders agreed, subject to the
terms and conditions set forth therein, to forbear from exercising their rights
and remedies for a limited period of time; and
WHEREAS, the forbearance period set forth in the Forbearance Agreement
has expired, and the Borrowers have been unable to cure such defaults; and
WHEREAS, as a result of such expiration, the Agent and the Lenders have
the right, as set forth in the Loan Agreement and the other Loan Documents, to
immediately accelerate all of the Secured Obligations and exercise all of their
rights and remedies with respect to the Collateral, all without notice to the
Borrowers; and
WHEREAS, the Borrowers have requested that the Agent and the Lenders
waive such defaults and amend the Loan Agreement on the terms and conditions set
forth herein; and
WHEREAS, the Agent and the Lenders are willing to grant such waivers
and amend the Loan Agreement, subject to the terms and conditions set forth
herein.
NOW, THEREFORE, in consideration of the foregoing premises, and other
good and valuable consideration, the receipt and legal sufficiency of which are
hereby acknowledged, the parties hereto hereby agree as follows:
1. All capitalized terms used herein and not otherwise expressly
defined herein shall have the respective meanings given to such terms in the
Loan Agreement.
2. The Borrowers acknowledge that they are in default under (a) SECTION
2A.3(B) of the Loan Agreement, for periods up to and including the date hereof,
as a result of the fact that the unpaid principal amount of the Revolving Credit
Loans has exceeded, and continues to exceed, the Borrowing Base, (b) SECTION
11.1(B) of the Loan Agreement for the fiscal quarter ending on June 30, 2000, as
a result of the Borrowers' failure to maintain the Consolidated Funded
Indebtedness to Consolidated EBITDA ratio set forth therein, (c) SECTION 11.1(C)
of the Loan Agreement for the fiscal quarter ending on June 30, 2000, as a
result of the Borrowers' failure to maintain the Consolidated fixed charge
coverage ratio set forth therein, (d) SECTION 11.5 of the Loan Agreement for
fiscal year 2000, as a result of the Borrowers' failure to comply with the
Capital Expenditure limit set forth therein, and (e) SECTION 11.17 of the Loan
Agreement for periods up to and including the date hereof, as a result of the
Borrowers' failure to comply with the minimum Availability covenant set forth
therein (collectively, the "Specified Defaults"). The Borrowers acknowledge
that, because of the Specified Defaults, the Agent and the Lenders have the
right, among other things, to declare all of the Secured Obligations to be
immediately due, payable and performable, and to enforce collection of the
Secured Obligations by repossessing and disposing of any interest in the
Collateral thereunder, as more fully set forth in ARTICLE 12 of the Loan
Agreement. In consideration of the Borrowers' timely and strict compliance with
their agreements set forth in the Loan Agreement, and in reliance upon the
representations, warranties, agreements and covenants of the Borrowers set forth
herein and in the Loan Agreement, as amended hereby, the Agent and the Lenders
hereby waive the Specified Defaults. Notwithstanding the foregoing, the Agent
and the
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Lenders reserve their rights and remedies at all times with respect to any
Default or Event of Default under the Loan Agreement or this Amendment other
than a Specified Default, whether presently existing or occurring hereafter.
3. To induce the Agent and the Lenders to enter into this Amendment and
grant the accommodations set forth herein, the Borrowers agree with the Agent
and the Lenders as follows:
(a) Until the Required Lenders otherwise consent in writing,
the Borrowers shall provide to the Agent and the Lenders a Borrowing
Base Certificate on each Business Day, prepared as of the close of
business on the immediately preceding Business Day to reflect
information with respect to Receivables (including, without limitation,
sales and collections) as of such immediately preceding Business Day;
provided, however, that information on such Borrowing Base Certificates
with respect to Inventory shall only be required to be updated as of
the close of business on the last Business Day of each calendar month
within fifteen Business Days of the end of such calendar month.
(b) Until Availability first equals or exceeds $1,000,000
after the date hereof, the Borrowers shall have no right to request or
receive, and the Lenders shall have no obligation to make, any LIBOR
Rate Loans (nor shall any existing Loan be converted to or continued as
a LIBOR Rate Loan) or Capital Expenditure Loans.
(c) Until Availability first equals or exceeds $1,000,000
after the date hereof, each Borrower agrees that it shall not return
$50,000 (based on such Borrower's cost therefor) or more of Inventory
to any vendor for any reason without the prior written consent of the
Agent and the Lenders.
(d) Until Availability first equals or exceeds $1,000,000
after the date hereof, no Receivable included in any Borrowing Base
Certificate on or after the date hereof in excess of $250,000 shall
constitute an Eligible Receivable until approved by the Agent. For each
such Receivable, the Borrowers shall provide the Agent with true and
complete copies of the invoice and purchase order with respect thereto
(such copies to be sent to the attention of both ▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇
▇▇▇▇▇ (facsimile number ▇▇▇-▇▇▇-▇▇▇▇)). With respect to any Receivable
that is not approved by the Agent pursuant to this paragraph, the Agent
agrees to notify the Borrowers' Agent of such disapproval on the
Business Day following the actual receipt by the Agent of the
applicable invoice and purchase order for such Receivable and, if such
notification is not sent to the Borrowers' Agent on such following
Business Day, and such Receivable would otherwise constitute an
Eligible Receivable, such Receivable shall be included in the Borrowing
Base.
(e) It shall constitute an immediate Event of Default if AAS
does not receive, following the date hereof, at least $1,000,000 of
equity by August 15, 2000 (such equity is hereafter referred to as the
"Initial Equity Investment") on terms and conditions (including all
applicable legal documents) acceptable to the Agent and the Lenders in
their discretion.
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(f) It shall constitute an immediate Event of Default if AAS
does not receive, following the date hereof and in addition to the
Initial Equity Investment, at least $5,000,000 of equity by August 31,
2000 (such equity is hereafter referred to as the "Secondary Equity
Investment") on terms and conditions (including all applicable legal
documents) acceptable to the Agent and the Lenders in their discretion.
(g) It shall constitute an immediate Event of Default if AAS
does not receive, following the date hereof and in addition to the
Initial Equity Investment and the Secondary Equity Investment, at least
$10,000,000 of equity or Subordinated Indebtedness by September 30,
2000 (such equity or Subordinated Indebtedness is hereafter referred to
as the "Subordinated Indebtedness Investment"; the Initial Equity
Investment, the Secondary Equity Investment and the Subordinated
Indebtedness Investment are sometimes collectively referred to as the
"Additional Capital") on terms and conditions (including all applicable
legal documents) acceptable to the Agent and the Lenders in their
discretion.
(h) The proceeds from the Additional Capital described above,
together with the proceeds of any Asset Disposition with respect to the
stock or assets of AAS Aircraft Services, Inc. ("Aircraft Services";
any such Asset Disposition with respect to Aircraft Services is
sometimes referred to herein as an "Aircraft Services Disposition"),
shall be applied by the Borrowers to the partial repayment of the
then-outstanding Secured Obligations as provided in SECTION 4.9 of the
Loan Agreement; provided, however, that (i) the proceeds from the
Additional Capital shall be applied to the Secured Obligations on the
date such proceeds are received by the Borrowers; and (ii) (A) with
respect to the Additional Capital, such proceeds shall be applied first
to the outstanding Revolving Credit Loans to the extent thereof and
then to Capital Expenditure Loans to the extent thereof, and (B) with
respect to any Aircraft Services Disposition, the first $1,425,000 of
such proceeds shall be applied to the outstanding Capital Expenditure
Loans made to finance assets of Aircraft Services and then to the
outstanding Revolving Credit Loans to the extent thereof. Nothing
contained in this paragraph shall be construed to permit any Borrower
to consummate any Asset Disposition or other merger, consolidation or
asset sale (other than sales and leases of Inventory in the ordinary
course of business) without the prior written consent of the Required
Lenders.
(i) Notwithstanding anything to the contrary set forth in any
of the Loan Documents, the Borrowers shall not cause or permit an
Overadvance in excess of $7,200,000 to exist during the period from the
date hereof to and including the earlier of September 30, 2000, and the
occurrence of a Default or Event of Default (it being understood that,
upon the occurrence of any Default or Event of Default prior to
September 30, 2000, the Borrowers shall be required to immediately and
permanently reduce all Overadvances to zero); provided, however, that
the Overadvance limit set forth above shall be immediately and
permanently reduced (and, upon the elimination of the Overadvances, the
minimum Availability which the Borrowers are required to maintain shall
be increased but shall not exceed $1,000,000) by an amount equal to (i)
70% of the
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proceeds from the Secondary Equity Investment on the date of receipt by
AAS thereof; (ii) 100% of the proceeds of the Subordinated Indebtedness
Investment on the date of the funding thereof; and (iii) 100% of the
amount applied to the Revolving Credit Loans as the result of the
receipt of the proceeds from an Aircraft Services Disposition;
provided, further, that the Lenders shall not be obligated to make any
Loan to the Borrowers if the making of such Loan would create an
Overadvance in excess of $7,000,000, it being understood that the Agent
intends to fund any Overadvance between $7,000,000 and $7,200,000 as an
Agent Advance under SECTION 4.7(D)(II) of the Loan Agreement. (By way
of example, if, on August 20, 2000, Overadvances equal $7,200,000 and
the Borrowers receive the Secondary Equity Investment in an amount of
$5,000,000, the Overadvance limit would decrease to $3,700,000
($7,200,000 minus 70% of $5,000,000). If the Subordinated Indebtedness
Investment were then funded on September 15, 2000, in the amount of
$10,000,000, the Overadvance limit would decrease to zero and the
Borrowers would be required to maintain Availability of at least
$1,000,000 thereafter.) From and after the earlier of October 1, 2000
and the first date on which Availability equals or exceeds $1,000,000,
the Borrowers shall be required to comply with the $1,000,000 minimum
Availability covenant set forth in SECTION 11.17 of the Loan Agreement.
As used herein, "Overadvance" shall mean, as of any date of
determination, the amount by which the outstanding principal balance of
Revolving Credit Loans exceeds the Borrowing Base. In the event an
Overadvance exists at any time in excess of the applicable limit, the
Agent and the Lenders may immediately exercise all of their rights and
remedies under the Loan Documents as a result thereof.
(j) If the Borrowers fail to obtain any portion of the
Additional Capital by the applicable date required by paragraphs (e),
(f) and (g) above, or if the Borrowers fail to reduce the Overadvances
or maintain the minimum Availability as required by paragraph (i)
above, the Borrowers shall (i) within thirteen (13) Business Days of
any such failure, engage a liquidation consultant reasonably acceptable
to the Agent, and (ii) within twenty-two (22) Business Days of any such
failure, deliver to the Agent and the Lenders the written report and
recommendations, in scope and detail reasonably satisfactory to the
Agent and the Lenders, of such liquidation consultant. The engagement
of such consultant and the delivery of such report shall be in addition
to, and shall not limit in any way, any other rights and remedies of
the Agent and the Lenders with respect to any Event of Default under
paragraphs (e), (f), (g) and (i) above.
(k) Until Availability first equals or exceeds $1,000,000
after the date hereof, the Borrowers, the Lenders and the Agent agree
that the Agent Advances under SECTION 4.7(D)(II) of the Loan Agreement
shall not exceed $200,000 at any one time outstanding.
(l) No payment shall be made by AAS Technologies or any other
Borrower with respect to the AAS Technologies Indebtedness, nor shall
any Investment be made in AAS Technologies by any of the other
Borrowers for the purpose of repaying any of the AAS Technologies
Indebtedness, unless after giving effect to such payment the Borrowers
are in compliance with all of the terms and conditions of the Loan
Agreement, including without limitation, (i) the $1,000,000 minimum
Availability requirement set
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forth in SECTION 11.17 of the Loan Agreement, and (ii) the financial
covenants set forth in SECTION 11.1 of the Loan Agreement; provided,
however, so long as no Event of Default exists or would be caused
thereby, AAS Technologies may make regularly scheduled interest
payments at the non-default contract rate on the AAS Technologies
Indebtedness.
(m) Until Availability first equals or exceeds $1,000,000
after the date hereof, the Borrowers shall provide to the Agent, by the
third Business Day of each week as of the close of business on the last
Business Day of the immediately preceding week, a contra report, in
form acceptable to the Agent, disclosing all Account Debtors to which
any Borrower owes any Indebtedness and the amounts owing by such
Account Debtors to the Borrowers and by the Borrowers to such Account
Debtors.
(n) The terms, conditions and provisions set forth in this
paragraph 3 may not be amended, modified or waived without the written
agreement of the Borrowers, the Agent and the Lenders.
(o) Any failure by any Borrower to comply with any of the
terms and conditions of any part of this paragraph 3 shall constitute
an immediate Event of Default.
4. The Loan Agreement is hereby amended by deleting all references to
"NationsBank, N.A." and substituting "Bank of America, N.A." in lieu thereof,
and by deleting all references to "NationsBank" and substituting "Bank of
America" in lieu thereof.
5. The Loan Agreement is hereby amended by deleting the definitions of
"Borrowing Base" and "Revolving Credit Facility" set forth in SECTION 1.1 and
substituting the following in lieu thereof:
"Borrowing Base" means at any time an amount equal to the lesser of:
(a) the Revolving Credit Facility MINUS the sum of
(i) the Letter of Credit Reserve, PLUS
(ii) such other reserves as the Agent in its reasonable
judgment may establish from time to time in accordance with customary
asset-based lending practices, and
(b) an amount equal to
(i) 80% of the face value of the Eligible Domestic Receivables
due and owing to the Borrowers at such time, PLUS
(ii) the lesser of
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(A) 75% of the face value of the Eligible Foreign
Receivables due and owing to the Borrowers at such time, AND
(B) $5,000,000;
provided, however, the amount available under clause (b)(ii)
shall in no event exceed 50% of the total amount under clause
(b) above, PLUS
(iii) 60% of the Orderly Liquidation Value of the Eligible
Parts Inventory of the Borrowers at such time, PLUS
(iv) 85% of the Orderly Liquidation Value of the Eligible
Inventoried Engine Inventory of the Borrowers at such time, PLUS
(v) 85% of the Orderly Liquidation Value of Eligible Domestic
Leased Engine Inventory of the Borrowers at such time, provided that
the Orderly Liquidation Value of any item of Eligible Domestic Leased
Engine Inventory included in the Borrowing Base shall be limited to the
Lease Present Value of the Lease Agreement to which such Inventory is
subject, PLUS
(vi) the lesser of
(A) 85% of the Orderly Liquidation Value of Eligible
Foreign Leased Engine Inventory of the Borrowers at such time,
provided that the Orderly Liquidation Value of any item of
Eligible Foreign Leased Engine Inventory included in the
Borrowing Base shall be limited to the Lease Present Value of
the Lease Agreement to which such Inventory is subject, AND
(B) $5,000,000;
provided, however, in any event, the dollar amount included in
the Borrowing Base under clauses (v) and (vi) above shall at
no time exceed in the aggregate $25,000,000 minus all Special
Purpose Subsidiary Indebtedness outstanding at such time;
provided, further, in any event, the dollar amount included in
the Borrowing Base under clauses (iii), (iv), (v) and (vi)
above shall at no time exceed (1) from August 1, 2000 through
and including September 30, 2000, $61,000,000 in the
aggregate; or (2) from and after October 1, 2000, $60,000,000,
MINUS
(vii) the sum of
(A) the Letter of Credit Reserve, PLUS
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(B) such other reserves as the Agent in its
reasonable judgment may establish from time to time in
accordance with customary asset-based lending practices.
The Borrowing Base shall be adjusted upon the sale of (i) any
Eligible Parts Inventory (if the net book value of the Parts
Inventory sold exceeds $250,000 per transaction), and (ii) any
Eligible Engine Inventory, by removing the net book value of
the Parts Inventory from the Borrowing Base and removing the
Orderly Liquidation Value of the Engine Inventory from the
Borrowing Base at the earlier to occur of (i) the time the
Agent delivers to the Borrowers the instrument releasing such
Inventory from the Security Interest, or (ii) the time the
Borrowers transfer title to such item of Inventory. The
Borrowers shall deliver to the Agent a revised Borrowing Base
Certificate within 5 Business Days of the earlier to occur of
(i) or (ii), above.
Notwithstanding the fact that an Orderly Liquidation Value
appraisal for such Inventory has not yet been completed and
received by the Agent in accordance with SECTION 8.12(F), upon
the Borrowers' request and, with respect to Bulk Purchases, at
the discretion of the Agent, and provided all other conditions
to eligibility have been met, the Borrowing Base shall be
adjusted following the acquisition by any Borrower of Engine
Inventory or Parts Inventory (if such acquisition was in
connection with a Bulk Purchase) in connection with (i) the
purchase of such Inventory in the ordinary course of business,
(ii) a Permitted Acquisition, or (iii) an Acquisition
expressly permitted by the Required Lenders. The Borrowers
shall provide the Agent with such information regarding any
such Inventory to enable the Agent to determine whether such
Inventory is eligible for inclusion in the Borrowing Base.
Such adjustment to the Borrowing Base shall be effected by the
Borrowers providing to the Agent an updated Borrowing Base
Certificate specifying the Eligible Parts Inventory and the
Eligible Engine Inventory acquired by the Borrowers pursuant
to such Bulk Purchase and including in the Borrowing Base
either (i) 60% of the Borrowers' cost (as evidenced by the
invoice therefor) for such Eligible Parts Inventory, or (ii)
70% of the Borrowers' cost (as evidenced by the invoice
therefor) for such Eligible Engine Inventory.
In addition, at the Agent's discretion, if an Orderly
Liquidation Value appraisal for such Inventory has been
completed and received by the Agent in accordance with SECTION
8.12(F), upon the Borrowers' request and provided all
conditions to eligibility have been met, the Borrowing Base
shall be adjusted to reflect intra-month acquisitions of
Eligible Parts Inventory and Eligible Engine Inventory
acquired in connection with Bulk Purchases. Such adjustment to
the Borrowing Base shall be effected by
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the Borrowers providing to the Agent an updated Borrowing Base
Certificate specifying the Eligible Parts Inventory and the
Eligible Engine Inventory acquired by the Borrowers pursuant
to such Bulk Purchase. The Borrowing Base shall also be
adjusted on a monthly basis, based on the Orderly Liquidation
Value appraisals delivered under SECTION 8.12(F).
Notwithstanding anything to the contrary contained herein,
Inventory acquired in connection with a Bulk Purchase shall be
eligible for inclusion in the Borrowing Base (subject to the
conditions set forth in this paragraph and in the preceding
paragraph) only at the Agent's discretion, for all Bulk
Purchases with purchase prices of not more than $4,000,000 per
Bulk Purchase, and only with the consent of the Required
Lenders, for all Bulk Purchases with purchase prices of
$4,000,000 or greater per Bulk Purchase.
Notwithstanding the foregoing, no Receivables acquired in
connection with a Permitted Acquisition shall be eligible for
inclusion in the Borrowing Base until such time as a field
examination has been completed by the Agent or its designee
with respect to the Receivables acquired.
Upon the request of the Borrowers, the Lenders will in their
discretion consider including in the Borrowing Base certain
Parts Inventory and aircraft leased by a Borrower to an
Account Debtor. Establishment of advance rates and eligibility
definitions for such leased Collateral, as well as the
decision regarding whether to include such leased Collateral
in the Borrowing Base at all, shall be made by the Lenders in
their discretion. Any Parts Inventory or aircraft leased by a
Borrower to an Account Debtor and determined by the Lenders to
be eligible for inclusion in the Borrowing Base shall
nonetheless be subject to the limit set forth in the proviso
following clause (vi) above.
"Revolving Credit Facility" means the principal amount of
$85,000,000 or such lesser or greater amount as shall be agreed upon
from time to time in writing by the Agent, the Lenders and the
Borrowers.
6. The Loan Agreement is hereby amended by deleting the reference to
"$100,000,000" in SECTION 2B.1(A)(II) and substituting "$85,000,000".
7. The Loan Agreement is hereby amended by deleting SECTION 11.1 and
substituting the following in lieu thereof:
SECTION 11.1 Financial Ratios.
(a) Minimum Consolidated Tangible Net Worth. Permit the
Consolidated Tangible Net Worth of the Borrowers and their Consolidated
Subsidiaries, measured at the end of the 2000 fiscal year, to be less
than
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$15,000,000; for each subsequent fiscal year end, the required Minimum
Consolidated Tangible Net Worth shall be increased by the greater of
(i) 75% of the Consolidated positive Net Income of the Borrowers and
their Consolidated Subsidiaries for the previous fiscal year, or (ii)
$2,500,000.
(b) Maximum Consolidated Funded Indebtedness to Consolidated
EBITDA Ratio. Permit the ratio of the Consolidated Funded Indebtedness
of the Borrowers and their Consolidated Subsidiaries as of any fiscal
quarter end, to the Consolidated EBITDA of the Borrowers and their
Consolidated Subsidiaries for the preceding four fiscal quarters, to be
greater than 5.0 to 1 for any quarter, commencing with the fiscal
quarter ending March 31, 2001.
(c) Minimum Consolidated Fixed Charge Coverage Ratio. Permit
the ratio of (i) the Consolidated EBITDA of the Borrowers and their
Consolidated Subsidiaries other than any Special Purpose Subsidiaries,
minus Unfunded Capital Expenditures, dividends and cash taxes paid by
the Borrowers and their Consolidated Subsidiaries other than any
Special Purpose Subsidiaries, to (ii) the Consolidated Fixed Charges of
the Borrowers and their Consolidated Subsidiaries other than any
Special Purpose Subsidiaries, to be less than 2.0 to 1 as of the fiscal
quarter ending March 31, 2001 and as of any fiscal quarter ending
thereafter, measured for the immediately preceding four fiscal
quarters.
8. The Loan Agreement is hereby amended by deleting SECTION 11.5 and
substituting the following in lieu thereof:
SECTION 11.5 Capital Expenditures. Make or incur any Capital
Expenditures, except that the Borrowers and their Subsidiaries may make
or incur Capital Expenditures in the 2000 fiscal year in an amount not
to exceed, in the aggregate, $6,200,000, and the Borrowers and their
Subsidiaries may make or incur Capital Expenditures in any subsequent
fiscal year in an amount not to exceed, in the aggregate for any such
fiscal year, $2,500,000.
9. The Loan Agreement is hereby amended by deleting ANNEX II and
substituting the ANNEX II attached hereto in lieu thereof.
10. The Borrowers have previously executed and delivered a Revolving
Credit Note and a Capital Expenditure Note in favor of each Lender. In order to
reflect the decrease in the Revolving Credit Facility as set forth in this
Amendment, the principal face amount of the Revolving Credit Note in favor of
each Lender is hereby amended as set forth below:
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Lender Revolving Credit Note
------ ---------------------
Bank of America, N.A. $51,000,000
National Bank of Canada, $21,250,000
a Canadian chartered bank
The CIT Group / Business Credit, Inc. $12,750,000
-----------
Total: $85,000,000
11. The Borrowers, the Lenders and the Agent each hereby acknowledge
and agree that, pursuant to the amendments to the Loan Agreement set forth in
the Forbearance Agreement, the first scheduled principal repayment with respect
to the Capital Expenditure Loans shall be due on October 1, 2000. The previous
sentence constitutes only a clarification, and the failure to restate any other
amendments previously made the Loan Agreement, in the Forbearance Agreement or
otherwise, shall not be construed as an indication that such amendments are no
longer in full force and effect.
12. The Borrowers agree to pay on demand all costs and expenses of the
Agent and the Lenders in connection with the preparation, execution and delivery
of this Amendment, including, without limitation, the reasonable fees and
out-of-pocket expenses of legal counsel to the Agent and the Lenders. The
Borrowers authorize the Agent to charge the Borrowers' Loan Account for such
fees and expenses.
13. To induce the Agent and each Lender to enter into this Amendment,
the Borrowers hereby represent and warrant that, as of the date hereof, and
after giving effect to the terms hereof, there exists no Default or Event of
Default.
14. The Borrowers hereby restate, ratify, and reaffirm each and every
term, condition, representation and warranty heretofore made by each of them
under or in connection with the execution and delivery of the Loan Agreement and
the other Loan Documents, as fully as though such representations and warranties
had been made on the date hereof and with specific reference to this Amendment,
except to the extent that any such representation or warranty relates solely to
a prior date.
15. Except as expressly set forth herein, the Loan Agreement and the
other Loan Documents shall be and remain in full force and effect as originally
written, and shall constitute the legal, valid, binding and enforceable
obligations of the Borrowers to the Agent and the Lenders.
16. To induce the Agent and the Lenders to enter into this Amendment
and grant the accommodations set forth herein, each Borrower agrees that (a)
except as expressly set forth herein, neither the Agent nor any Lender has
agreed to (and has no obligation whatsoever to discuss, negotiate or agree to)
any other restructuring, modification, amendment, waiver or forbearance with
respect to the Secured Obligations or the Loan Agreement, (b) no understanding
with respect to any
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other restructuring, modification, amendment, waiver or forbearance with respect
to the Secured Obligations or the Loan Agreement shall constitute a legally
binding agreement or contract, or have any force or effect whatsoever, unless
and until reduced to writing and signed by authorized representatives of each
party hereto, and (c) the execution and delivery of this Amendment has not
established any course of dealing between the parties hereto or created any
obligation or agreement of the Agent or any Lender with respect to any future
restructuring, modification, amendment, waiver or forbearance with respect to
the Secured Obligations or the Loan Agreement.
17. To induce the Agent and the Lenders to enter into this Amendment
and grant the accommodations set forth herein, each Borrower (a) acknowledges
and agrees that no right of offset, defense, counterclaim, claim or objection
exists in favor of such Borrower against the Agent or any Lender arising out of
or with respect to the Loan Agreement, the other Loan Documents, the Secured
Obligations, or any other arrangement or relationship between the Agent, any
Lender and such Borrower, and (b) releases, acquits, remises and forever
discharges the Agent and each Lender and its affiliates and all of their past,
present and future officers, directors, employees, agents, attorneys,
representatives, successors and assigns from any and all claims, demands,
actions and causes of action, whether at law or in equity, whether now accrued
or hereafter maturing, and whether known or unknown, which such Borrower now or
hereafter may have by reason of any manner, cause or things to and including the
date of this Amendment with respect to matters arising out of or with respect to
the Loan Agreement, the other Loan Documents, the Secured Obligations, or any
other arrangement or relationship between the Agent or any Lender and such
Borrower.
18. The Borrowers agree to take such further action as the Agent shall
reasonably request in connection herewith to evidence the agreements herein
contained.
19. 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
counterparts, taken together, shall constitute but one and the same instrument.
20. This Agreement shall be binding upon and inure to the benefit of
the successors and permitted assigns of the parties hereto.
21. This Agreement shall be governed by, and construed in accordance
with, the laws of the State of Georgia, other than its laws respecting choice of
law.
-12-
13
IN WITNESS WHEREOF, the Borrowers, the Agent and the Lenders have
caused this Amendment to be duly executed by their authorized officers in
several counterparts, all as of the date first above written.
BORROWERS:
AMERICAN AIRCARRIERS SUPPORT,
INCORPORATED
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------
Title: Chief Executive Officer
--------------------------------------
AAS ENGINE SERVICES, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------
Title: Chief Executive Officer
--------------------------------------
AAS LANDING GEAR SERVICES, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------
Title: Chief Executive Officer
--------------------------------------
AAS COMPLETE CONTROLS, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------
Title: Chief Executive Officer
--------------------------------------
AAS-AMJET, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------
Title: Chief Executive Officer
--------------------------------------
14
AAS AIRCRAFT SERVICES, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------
Title: Chief Executive Officer
--------------------------------------
LENDERS:
BANK OF AMERICA, N.A., formerly
NationsBank, N.A.
By: /s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇, III
-----------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ III
Vice President
NATIONAL BANK OF CANADA, a Canadian
chartered bank
By: /s/▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------
Title: Vice President and Manager
---------------------------------
By: /s/▇▇▇ ▇▇▇▇
-----------------------------------------
Name: ▇▇▇ ▇▇▇▇
----------------------------------
Title: Vice President
---------------------------------
THE CIT GROUP/BUSINESS CREDIT, INC.
By:/s/ ▇▇▇ ▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇ ▇▇▇▇▇▇
----------------------------------
Title: Vice President
---------------------------------
15
AGENT:
BANK OF AMERICA, N.A., formerly
NationsBank, N.A.
By: /s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇, III
-----------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ III
Vice President
16
NOTARY JURAT FOR EXECUTION OF
WRITTEN OBLIGATIONS TO PAY MONEY
BY FLORIDA BORROWERS
On this the 7th day of August, 2000, before me, the undersigned, a
Notary Public in and for the State of North Carolina, County of Mecklenburg,
▇▇▇▇ ▇. ▇▇▇▇▇ personally appeared, personally known to me or proved to me on the
basis of satisfactory evidence to be the Chief Executive Officer of each of
American Aircarriers Support, Incorporated, AAS Engine Services, Inc.,
AAS-Amjet, Inc., AAS Landing Gear Services, Inc., AAS Complete Controls, Inc.
and AAS Aircraft Services, Inc., who, being by me first duly sworn, stated that:
1. He/She executed the foregoing agreement on behalf of such corporations
pursuant to their by-laws or resolutions of their boards of directors, said
execution taking place in the State of North Carolina, County of
Mecklenburg; and
2. He/She has this day delivered the foregoing agreement to Bank of America,
N.A. at ▇▇▇▇▇▇ County, Georgia.
Signature of Borrowers' Officer:
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------
Sworn to and subscribed before me this 7th day of August, 2000:
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Notary Signature
My Commission Expires:
December 14, 2002
-------------------------------
[Affix Notarial Seal]
17
AFFIDAVIT REGARDING DELIVERY
On this the ____ day of August, 2000, before me, the undersigned, a
Notary Public in and for the State of Georgia, County of ▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
III personally appeared, personally known to me or proved to me on the basis of
satisfactory evidence to be a Vice President of Bank of America, N.A., who,
being by me first duly sworn, stated that Bank of America, N.A., as Agent, has
received delivery of the foregoing agreement in the State of Georgia, County of
▇▇▇▇▇▇.
/s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇, III
--------------------------------------
Signature of Officer of Agent
Sworn to and subscribed before me this ______ day of August, 2000:
--------------------------------
Notary Signature
My Commission Expires:
--------------------------------
[Affix Notarial Seal]
18
ANNEX II
Commitments
1. Bank of America, N.A. $51,000,000
2. National Bank of Canada, a
Canadian chartered bank $21,250,000
3. The CIT Group/Business Credit, Inc. $12,750,000
-----------
Total Commitment $85,000,000
