EXHIBIT 10.3
August 16, 2001
Aviation Sales Company and Subsidiaries
0000 Xxxxxxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
Attn: Chief Financial Officer
Re: Participation Agreement dated as of December 17, 1998 (as
amended, the "Participation Agreement") by and among AVIATION
SALES COMPANY, a Delaware corporation ("Aviation Sales"), as
Construction Agent (the "Construction Agent"); AVIATION SALES
COMPANY, as Lessee (the "Lessee"); XXXXX FARGO BANK NORTHWEST,
NATIONAL ASSOCIATION, f/k/a First Security Bank, National
Association, a national banking association, not individually,
except as expressly stated in the Operative Agreements, but
solely as Owner Trustee under the Aviation Sales Trust 1998-1
(the "Owner Trustee"); BANK OF AMERICA, N.A., successor to
NationsBank, National Association ("Bank of America"), as a
Holder and as a Lender; BANK OF AMERICA, N.A., successor to
NationsBank, National Association, as Administrative Agent (the
"Agent"); each of the Holders party to the Trust Agreement (the
"Holders"); each of the Lenders party to the Credit Agreement
(the "Lenders"); and each of the Guarantors party to the Guaranty
Agreement (the "Subsidiaries").
Gentlemen:
All capitalized terms used herein without definition shall have the
definition provided therefor in the Participation Agreement.
Events of Default have occurred pursuant to Sections 17.1(f) and 17.1(n) as
a result of the failure of Aviation Sales to make a scheduled interest payment
due with respect to the Senior Subordinated Notes on August 15, 2001.
Aviation Sales and its Subsidiaries have requested that the Owner Trustee,
the Agent, the Lenders and the Holders forbear from exercising their rights and
remedies with respect to the aforesaid Events of Default until September 12,
2001.
Aviation Sales and its Subsidiaries have further requested the consent of
the Agent, the Owner Trustee, the Lenders and the Holders that the due date for
the delivery of the management letter from their independent accountants as set
forth in Section 28.1.1(e) of the Lease Agreement be extended to September 30,
2001.
1. Forbearance. The Agent, the Owner Trustee, the Lenders and the Holders
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hereby agree, subject to the satisfaction of the conditions set forth below and
subject to
the limitations set forth below, that none of the Agent, the Owner Trustee, the
Lenders or the Holders will, during the period commencing on the date hereof and
ending on September 12, 2001 (the "Forbearance Period"), exercise any rights and
remedies available to them under the Participation Agreement, the Credit
Agreement, the Lease Agreement, or other Operative Agreements arising from an
Event of Default under Section 17.1(f) or Section 17.1(n) of the Lease Agreement
with respect to the failure of Aviation Sales to make a scheduled interest
payment due on August 15, 2001 with respect to the Senior Subordinated Notes.
2. Consent. The Agent, the Owner Trustee, the Lenders and the Holders
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hereby consent to an extension of time to deliver the management letter from
their independent accountants, as required in Section 28.1.1(e) of the Lease
Agreement, until September 30, 2001.
3. Limitations. The parties agree that: (i) the consent and forbearance
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described in this forbearance and consent letter do not constitute a waiver of
any Default or Event of Default; (ii) all Operative Agreements are in full force
and effect as of the date hereof; (iii) the forbearance described in this
forbearance and consent letter shall terminate immediately if any noteholder
under the Senior Subordinated Notes, the trustee under the Subordinated Debt
Indenture, Citicorp as agent or any lender under the Citicorp Loan Documents, or
any other agent or lender under any credit facility for Aviation Sales or any
Subsidiary, commences to exercise any remedies with respect to any default or
event of default under such facility.
Without limiting the generality of the foregoing, Aviation Sales and its
Subsidiaries acknowledge that, pursuant to the Lease Agreement, they may not
amend, modify or otherwise change any of the terms or provisions of the
Subordinated Debt Indenture, the Senior Subordinated Notes or any other
agreements or instruments executed in connection with the Senior Subordinated
Notes, and that (as a condition to granting any consent to any such amendment,
modification or change) the Agent, the Owner Trustee, the Lenders or the Holders
may require additional consideration, including without limitation, the payment
of a consent fee.
4. Conditions. The aforesaid forbearance and consent are expressly
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conditioned upon satisfaction of the following conditions:
a) the requisite parties under the Existing Aviation Sales Credit
Agreement have executed that certain forbearance letter, dated as of the date
hereof (the "Citicorp Forbearance Letter") with respect to events of default
under sections 12.01(e)(i) and (ii) of the Existing Aviation Sales Credit
Agreement, which Citicorp Forbearance Letter is attached hereto as Exhibit A;
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b) the requisite parties under the Existing Aviation Sales Credit
Agreement have executed that certain consent, dated as of August 13, 2001 (the
"Citicorp Consent") with respect to a corresponding extension of time for the
delivery of such management letter, as required in section 8.01(e) of the
Existing Aviation Sales Credit Agreement, which Citicorp Consent is attached
hereto as Exhibit B;
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c) all conditions to the effectiveness of the Citicorp Forbearance
Letter and the Citicorp Consent;
d) The Owner Trustee, the Lenders and the Holders shall have
executed and delivered this letter to the Agent;
e) Aviation Sales and its Subsidiaries shall have executed and
delivered this letter to the Agent; and
f) Aviation Sales shall have reimbursed the Agent for the expenses
identified on Exhibit C attached hereto.
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5. Release. Aviation Sales and its Subsidiaries acknowledge that they
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have no existing defense, counterclaim, offset, cross-complaint, claim or demand
of any kind or nature whatsoever that can be asserted to reduce or eliminate all
or any part of their or the Owner Trustee's respective liability to pay or
perform any obligations pursuant to any of the Operative Agreements or any other
documents which evidence or secure any obligations owed under any Operative
Agreement. In consideration for the execution of this letter, each of Aviation
Sales and its Subsidiaries hereby releases and forever discharges, Bank of
America, the Agent, the Lenders, the Holders and the Owner Trustee and all of
their respective officers, directors, employees, Affiliates and agents
(collectively, the "Released Parties") from any and all actions, causes of
action, debts, dues, claims, demands, liabilities and obligations of every kind
and nature, both in law and in equity, known or unknown, whether heretofore or
now existing, liquidated or unliquidated, matured or unmatured, fixed or
contingent (collectively, the "Release Claims"), which might be asserted against
any of the Released Parties. This Release applies to all matters arising out of
or relating to the Operative Agreements, any Property, any obligations due under
any of the Operative Agreements and this Consent Agreement, commitment letters
with respect to other loan facilities, and the lending and borrowing
relationships, and (to the extent any Release Claims relating to such deposit
relationships are now known to Aviation Sales or any of its Subsidiaries) the
deposit relationships, between Aviation Sales and its Subsidiaries, and Bank of
America, the Agent, the Lenders, the Holders and the Owner Trustee, including
the administration, collateralization and funding thereof. Each of Aviation
Sales and its Subsidiaries further agrees not to bring any action in any
judicial, administrative or other proceeding against the Released Parties, or
any of them, alleging any such Release Claim or otherwise arising in connection
with any such Release Claim.
It is the intent of the parties that except as otherwise set forth herein,
the foregoing release shall be effective as a full and final accord and
satisfaction of all claims hereby released and each of Aviation Sales and its
Subsidiaries hereby agrees, represents and warrants that the matters released
herein are not limited to matters which are known or disclosed. In this
connection, each of Aviation Sales and its Subsidiaries hereby agrees,
represents and warrants that it realizes and acknowledges that factual matters
now existing and unknown to it may have given or may hereafter give rise to
Release Claims, which are presently unknown, unsuspected, unliquidated,
unmatured and/or contingent,
and it further agrees, represents and warrants that this release has been
negotiated and agreed upon in view of that realization. Nevertheless, Aviation
Sales and its Subsidiaries hereby intend to release, discharge and acquit the
Released Parties of and from any such unknown, unsuspected, unliquidated,
unmatured and/or contingent Release Claims, which are in any way set forth in or
related to the matters identified above in this letter. Aviation Sales and its
Subsidiaries hereby explicitly waive the benefits of any common law or statutory
rule with respect to the release of such Release Claims.
The acceptance and delivery of this letter by the Agent on behalf of the
Released Parties shall not be deemed or construed as an admission of liability
with respect to the Release Claims or otherwise by the Released Parties, or any
of them, and the Released Parties hereby expressly deny liability of any nature
whatsoever arising from or related to the subject of the release contained in
this letter.
Each of Aviation Sales and its Subsidiaries hereby agrees, represents and
warrants that: (i) such party has not voluntarily, by operation of law or
otherwise, assigned, conveyed, transferred or encumbered, either directly or
indirectly, in whole or in part, any right to or interest in any of the Release
Claims purported to be released by this letter; (ii) such party has had advice
of counsel of its own choosing in negotiations for and the preparation of this
forbearance and consent letter; and (iii) such party is fully aware of the
effect of releases such as that contained in this letter.
6. Counterparts. This letter may be executed in one or more
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counterparts, each of which shall be deemed an original and all of which shall
constitute one and the same documents. Delivery of any executed counterpart of
this letter by facsimile transmission shall be effective as delivery of a
manually executed counterpart hereof.
7. GOVERNING LAW. THIS LETTER SHALL BE GOVERNED BY AND CONSTRUED IN
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ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO OTHERWISE
APPLICABLE PRINCIPLES OF CONFLICT OF LAWS.
[Signatures appear on the following pages]
XXXXX FARGO BANK NORTHWEST, NATIONAL ASSOCIATION, f/k/a
First Security Bank, National Association
not individually, except as expressly stated under
the Operative Agreements, but solely as Owner
Trustee under the Aviation Sales Trust 1998-1
By: /s/ Xxxxx X. Xxxx
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Name: Xxxxx X. Xxxx
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Title: Vice President
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BANK OF AMERICA, N.A., as a Holder and as
a Lender
By: /s/ Xxxxx X. Xxxxx, Xx.
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Name: Xxxxx X. Xxxxx, Xx.
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Title: Senior Vice President
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BANK OF AMERICA, N.A., as Administrative
Agent
By: /s/ Xxxxx X. Xxxxx, Xx.
--------------------------
Name: Xxxxx X. Xxxxx, Xx.
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Title: Senior Vice President
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The terms and conditions of the aforesaid letter are hereby acknowledged and
accepted by the following signatories, and each hereby represents and warrants
that no consents, approvals or waivers with respect to the agreements entered
into in connection with the above-referenced matters, which have not been
obtained, are required under the terms of the Lease Agreement or any Operative
Agreement.
AVIATION SALES COMPANY,
as Construction Agent
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxx
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Title: Vice President
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AVIATION SALES COMPANY,
as Lessee
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxx
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Title: Vice President
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AVIATION SALES COMPANY
AVS/M-1, INC. (formerly known as AVIATION
SALES MANUFACTURING COMPANY)
AVIATION SALES PROPERTY
MANAGEMENT CORP.
AVIATION SALES FINANCE COMPANY
TIMCO ENGINE CENTER, INC.
AVS/M-2, INC. (formerly known as AVS/XXXXX-XXXXX
MACHINE COMPANY)
AVS/M-3, INC. (formerly known as APEX MANUFACTURING,
INC.)
AEROCELL STRUCTURES, INC.
AVIATION SALES DISTRIBUTION
SERVICES COMPANY
AVIATION SALES LEASING COMPANY
WHITEHALL CORPORATION
TRIAD INTERNATIONAL MAINTENANCE
CORPORATION (successor in interest to Aero
Corporation and Aero Corp Macon, Inc.)
AVIATION SALES MAINTENANCE, REPAIR &
OVERHAUL COMPANY
CARIBE AVIATION, INC.
AIRCRAFT INTERIOR DESIGN, INC.
AERO HUSHKIT CORPORATION
HYDROSCIENCE, INC.
TIMCO ENGINEERED SYSTEMS, INC.
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
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Title: VP of each of the foregoing Guarantors
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AVSRE, L.P.
By: Aviation Sales Property Management Corp.,
its general partner
By: /s/ Xxxxxxx X. Xxxxx
---------------------------------------------
Name: Xxxxxxx X. Xxxxx
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Title: Vice President
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AVIATION SALES SPS I, INC.
By: /s/ Xxxxxxx X. Xxxxx
---------------------------------------------
Name: Xxxxxxx X. Xxxxx
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Title: Vice President
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