EXECUTION COPY
EXHIBIT 10.36
AMENDMENT NO. 1 TO THE SECURITIES PURCHASE
AGREEMENT
THIS AMENDMENT NO. 1 TO THE SECURITIES PURCHASE AGREEMENT (this
"AMENDMENT") is entered into as of December 30, 2002 among Aviall Services Inc.,
a Delaware corporation (the "BORROWER"), Aviall, Inc., a Delaware corporation
("HOLDINGS"), X.X. Xxxxxxx Mezzanine Fund, L.P., a Delaware limited partnership
("WMF"), Whitney Private Debt Fund, L.P., a Delaware limited partnership
("XXXXXXX XX"), Xxxxxxx Limited Partner Holdings, LLC, a Delaware limited
partnership ("WHITNEY LLC" and together with WMF and Xxxxxxx XX, the "XXXXXXX
FUNDS"), Blackstone Mezzanine Partners L.P., a Delaware limited partnership
("BLACKSTONE PARTNERS"), Blackstone Mezzanine Holdings L.P., a Delaware limited
partnership ("BLACKSTONE HOLDINGS" and together with Blackstone Partners,
"BLACKSTONE"), Carlyle High Yield Partners L.P., a Delaware limited partnership
("CARLYLE") and Oak Hill Securities Fund, L.P., Oak Hill Securities Fund II,
L.P., Xxxxxx Enterprises, LP and P & PK Limited Partnership, each a Delaware
limited partnership (collectively, "OAK HILL"). The Whitney Funds, Xxxxxxxxxx,
Xxxxxxx and Oak Hill are sometimes referred to herein individually as a
"PURCHASER" and collectively as the "PURCHASERS." Unless otherwise specified
herein, all capitalized terms used in this Amendment shall have the meaning
ascribed to them in the Securities Purchase Agreement (as hereinafter defined).
WITNESSETH:
WHEREAS, Borrower, Holdings and Purchasers are party to a Securities
Purchase Agreement dated as of December 17, 2001 (the "SECURITIES PURCHASE
AGREEMENT"); and
WHEREAS, the parties to the Securities Purchase Agreement desire to
amend the Securities Purchase Agreement as herein set forth.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
ARTICLE 1.
AMENDMENT TO THE SECURITIES PURCHASE AGREEMENT
1.1 Amendment to the Securities Purchase Agreement. Effective upon the
execution of this Amendment by the Borrower, Holdings and the Purchasers and the
satisfaction of the conditions precedent set forth in Article 2 hereof, the
parties hereto agree to amend the Securities Purchase Agreement as follows:
Capital Expenditures. Section 9.05 (Capital Expenditures) is
amended by substituting for the schedule contained therein the
following schedule:
MAXIMUM CAPITAL
FISCAL YEAR EXPENDITURES
----------- ---------------
2002 10,600,000
2003 12,400,000
2004 12,100,000
2005 12,100,000
2006 12,100,000
ARTICLE 2.
CONDITIONS PRECEDENT TO AMENDMENT
This Amendment shall be effective as of the date first written above
upon the satisfaction or due waiver of the following conditions precedent:
2.1 Representations and Warranties. The representations and warranties
set forth in this Amendment shall be true and correct on the date hereof.
2.2 Documents. Borrower and Holdings shall have delivered or caused to
be delivered to the Purchasers:
(a) resolutions of the Borrower and Holdings authorizing the
execution and delivery of this Amendment by the Borrower and Holdings certified
by the secretary of the Borrower and Holdings; and
(b) such other documents as the Purchasers may reasonably
request; provided, that delivery to the Borrower and Holdings by the Purchasers
of executed signature pages to this Amendment shall be conclusive evidence of
the satisfaction of the condition precedent set forth in this clause (b).
2.3 Senior Credit Agreement. Section 5.5 of the Senior Credit Agreement
shall have been amended to provide for maximum Capital Expenditures (as defined
in the Senior Credit Agreement) in Fiscal Year 2002 of not in excess of
$9,600,000.
2.4 Warrants. Section 2.1(b) of each of the outstanding warrants to
purchase shares of common stock issued to the Purchasers shall have been amended
by (a) deleting the word "five" in the second line and replacing it with the
word "three" and (b) deleting the number "5" in the second line and replacing it
with the number "3".
ARTICLE 3.
REPRESENTATIONS AND WARRANTIES OF BORROWER AND HOLDINGS
The Borrower and Holdings represent and warrant to the Purchasers:
2
3.1 Authorization. The execution, delivery and performance by the
Borrower and Holdings of this Amendment have been authorized by all necessary
corporate action and this Amendment is a legal, valid and binding obligation of
the Borrower and Holdings enforceable against them in accordance with its terms,
except as the enforcement thereof may be subject to (a) the effect of any
applicable bankruptcy, insolvency, reorganization, moratorium or similar law
affecting creditors' rights generally and (b) general principles of equity
(regardless of whether such enforcement is sought in a proceeding in equity or
at law).
3.2 No Conflict. Neither the execution, delivery and performance of
this Amendment nor the consummation of the transactions contemplated hereby does
or shall contravene, result in a breach of, or violate (a) any provision of the
Borrower's or Holdings' certificate or articles of incorporation or bylaws, (b)
any law or regulation, or any order or decree of any court or government
instrumentality, or (c) any indenture, mortgage, deed of trust, lease, agreement
or other instrument to which the Borrower or Holdings or any of their
Subsidiaries is a party or by which the Borrower or Holdings or any of their
Subsidiaries or any of their property is bound.
3.3 Representations and Warranties in the Amended and Restated Credit
Agreement. The representations and warranties set forth in Article IV
(Representations and Warranties) of the Amended and Restated Credit Agreement
dated as of January 11, 2002 among Borrower, Holdings, the Lenders (as defined
therein), the Issuers (as defined therein) and Citicorp USA, Inc., as agent for
the Lenders and the Issuers as supplemented and updated by that certain letter
to Citicorp USA, Inc., as set forth on Exhibit A attached hereto, are true and
correct in all material respects on and as of the date hereof, except for those
representations and warranties that, by their terms, refer to a specific date,
in which case, such representations and warranties were true and correct as of
such date.
3.4 No Default. No Default or Event of Default exists under the
Securities Purchase Agreement.
3.5 Note Transaction Documents. Neither Holdings or Borrower have any
charge, lien, claim or offset against any Purchaser, or defenses to the
enforcement of the Note Transaction Documents and the obligations by the
Purchasers.
ARTICLE 4.
MISCELLANEOUS PROVISIONS
4.1 Reference to and Effect Upon the Securities Purchase Agreement.
(a) Except as specifically amended above, the Securities
Purchase Agreement and the other Note Transaction Documents shall remain in full
force and effect and are hereby ratified and confirmed.
(b) The execution, delivery and effectiveness of this
Amendment shall not operate as a waiver of any Default or Event of Default or
any right, power, privilege or remedy of the Purchasers under the Securities
Purchase Agreement or any Note Transaction Document, or constitute a waiver of
any provision of the Securities Purchase Agreement or any Note
3
Transaction Document. Upon the effectiveness of this Amendment, each reference
in the Securities Purchase Agreement to this "this Agreement", "hereunder",
"hereof", "herein" or words of similar import shall mean and be a reference to
the Securities Purchase Agreement as amended hereby.
4.2 Costs and Expenses. As provided in Section 11.14 of the Securities
Purchase Agreement, Borrower and Holdings agree to reimburse the Purchasers for
all fees, costs and expenses, including the fees, costs and expenses of counsel
or other advisors for advice, assistance, or other representation in connection
with this Amendment.
4.3 Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS (AS OPPOSED TO CONFLICTS OF LAWS PROVISIONS)
OF THE STATE OF
NEW YORK.
4.4 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 purposes.
4.5 Counterparts. This Amendment may be executed in any number of
counterparts and by facsimile, each of which counterpart when so executed shall
be deemed an original, but all such counterparts shall constitute one and the
same instrument.
4.6 This Amendment, the Securities Purchase Agreement, together with
the exhibits and schedules thereto, the other Note Transaction Documents, the
letter agreement dated as of December 21, 2001 from Holdings to the Purchasers
and the Confidentiality Agreements referred to in Section 11.20 of the
Securities Purchase Agreement are intended by the parties as a final expression
of their agreement and intended to be a complete and exclusive statement of the
agreement and understanding of the parties hereto in respect of the subject
matter contained herein and therein. There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein or
therein. This Amendment, the Securities Purchase Agreement, together with the
exhibits and schedules thereto, the other Note Transaction Documents and the
letter agreement dated as of December 21, 2001 from Holdings to the Purchasers
supersede all prior agreements and understandings between the parties with
respect to such subject matter, except the Confidentiality Agreements referred
to in Section 11.20 of the Securities Purchase Agreement.
4
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed and delivered by their respective officers hereunto duly authorized as
of the date first above written.
AVIALL SERVICES, INC.
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President
AVIALL, INC.
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President
X. X. XXXXXXX MEZZANINE FUND, L.P.
By: Xxxxxxx XX, LLC,
Its General Partner
By: /s/ Xxxxxx X. Xxxxxxxxx, Xx.
--------------------------------------
Name: Xxxxxx X. Xxxxxxxxx, Xx.
Title: Managing Member
WHITNEY PRIVATE DEBT FUND, L.P.
By: Whitney Private Debt GP, LLC,
Its General Partner
By: /s/ Xxxxxx X. Xxxxxxxxx, Xx.
--------------------------------------
Name: Xxxxxx X. Xxxxxxxxx, Xx.
Title: Managing Member
WHITNEY LIMITED PARTNER HOLDINGS, LLC
By: /s/ Xxxxxx X. X'Xxxxx
-----------------------------------------
Name: Xxxxxx X. X'Xxxxx
Title: Managing Member
5
BLACKSTONE MEZZANINE PARTNERS L.P.
By: Blackstone Mezzanine Associates, L.P.
Its General Partner
By: Blackstone Mezzanine Management
Associates, L.L.C.
Its General Partner
By: /s/ Xxxxxxxxx Xxxxxxx
-----------------------------------------
Name: Xxxxxxxxx Xxxxxxx
Title: Authorized Signer
BLACKSTONE MEZZANINE HOLDINGS L.P.
By: Blackstone Mezzanine Associates, L.P.
Its General Partner
By: Blackstone Mezzanine Management
Associates, L.L.C.
Its General Partner
By: /s/ Xxxxxxxxx Xxxxxxx
--------------------------------------
Name: Xxxxxxxxx Xxxxxxx
Title: Authorized Signer
CARLYLE HIGH YIELD PARTNERS, L.P.
By: /s/ Xxxxxxx Xxxxx
-----------------------------------------
Name: Xxxxxxx Xxxxx
Title: Managing Director
OAK HILL SECURITIES FUND, L.P.
By: Oak Hill Securities GenPar, L.P.,
its General Partner
By: Oak Hill Securities MGP, Inc.,
its General Partner
By: /s/ Xxxxx X. Xxxxx
--------------------------------------
Name: Xxxxx X. Xxxxx
Title: Authorized Signatory
6
OAK HILL SECURITIES FUND II, L.P.
By: Oak Hill Securities GenPar II, L.P.,
its General Partner
By: Oak Hill Securities MGP II, Inc.,
its General Partner
By: /s/ Xxxxx X. Xxxxx
--------------------------------------
Name: Xxxxx X. Xxxxx
Title: Authorized Signatory
XXXXXX ENTERPRISES, L.P.
By: Oak Hill Asset Management, Inc.
its Advisor and Attorney-in-Fact
to Xxxxxx Enterprises, L.P.
(OHP Account)
By: /s/ Xxxxx X. Xxxxx
--------------------------------------
Name: Xxxxx X. Xxxxx
Title: Authorized Signatory
P & PK FAMILY LIMITED PARTNERSHIP
By: Oak Hill Asset Management, Inc.
As Advisor and Attorney-in-Fact
to P & PK Family Limited Partnership
By: /s/ Xxxxx X. Xxxxx
------------------------------------
Name: Xxxxx X. Xxxxx
Title: Authorized Signatory
7
