EXHIBIT 10.2
Amendment Agreement No. 3 for
Lease Agreement and
Certain Other Operative Agreements
THIS AMENDMENT AGREEMENT is made and entered into as of the 14th day of
August, 2000, by and among AVIATION SALES COMPANY, a Delaware corporation
("Aviation Sales"), as Construction Agent (the "Construction Agent"); AVIATION
SALES COMPANY, as Lessee (the "Lessee"); 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.,
d/b/a NationsBank, N.A., successor to NationsBank, National Association ("Bank
of America"), as a Holder and as a Lender; BANK OF AMERICA, N.A., d/b/a
NationsBank, N.A., successor to NationsBank, National Association, as
Administrative Agent (the "Agent"); each of the holders party to the Trust
Agreement (defined below) (the "Holders"); each of the Lenders party to the
Credit Agreement (defined below)(the "Lenders"); and each of the Guarantors
party to the Guaranty Agreement (defined below).
W I T N E S S E T H:
WHEREAS, the Construction Agent, the Lessee, the Owner Trustee, the
Agent, the Lenders and the Holders have entered into the Participation Agreement
dated as of December 17, 1998 (as amended, the "Participation Agreement"); and
WHEREAS, the Owner Trustee, the Lenders and the Agent have entered into
the Credit Agreement dated as of December 17, 1998 (as amended, the "Credit
Agreement"); and
WHEREAS, the Holders and the Owner Trustee have entered into the
Amended and Restated Trust Agreement dated as of December 17, 1998 (as amended,
the "Trust Agreement"); and
WHEREAS, the Owner Trustee and the Lessee have entered into the Lease
Agreement dated as of December 17, 1998 (as amended, the "Lease" or "Lease
Agreement"); and
WHEREAS, Aviation Sales, Subsidiaries of Aviation Sales, and the Agent
have entered into the respective Guaranty Agreements (Series A Obligations)
dated as of December 17, 1998, February 18, 2000, March 31, 2000 or May 31,
2000, as the case may be, (collectively, the "Series A Guaranty Agreement"); and
the Subsidiaries of Aviation Sales and the Owner Trustee have entered into the
respective Guaranty Agreements (Lessee Obligations) dated as of December 17,
1998 February 18, 2000, March 31, 2000 or May 31, 2000, as the case may be,
(collectively, the "Lessee Guaranty Agreement", and collectively with the Series
A Guaranty Agreement and any other Guaranty Agreement (as defined in the
Participation Agreement), the "Guaranty Agreement" or "Guaranty"); and
WHEREAS, the parties hereto desire further to amend the Lease Agreement
and certain other Operative Agreements in the manner herein set forth effective
as of the date hereof;
NOW, THEREFORE, the Construction Agent, the Lessee, the Owner Trustee,
the Holders, the Agent and the Lenders do hereby agree as follows:
1. Definitions. The terms "Participation Agreement", "Credit
Agreement", "Trust Agreement", "Lease" and "Lease Agreement" as used herein and
in the Operative Documents (as defined in the Participation Agreement) shall
mean such agreements as hereby amended and modified, and as further amended,
modified, supplemented or restated from time to time in accordance with the
terms thereof. Unless the context otherwise requires, all terms used herein
without definition shall have the definition provided therefor in the
Participation Agreement.
2. Amendments to Participation Agreement, Credit Agreement and Trust
Agreement. (Notwithstanding any provision in any Operative Agreement (including
without limitation the definition of "Interest Period" in Appendix A to the
Participation Agreement) which may suggest that an Interest Period may be two or
three months in length) from and after August 14, 2000, on the date of making
any Eurodollar Loan or Eurodollar Holder Funding (or the date of continuation of
any Eurodollar Loan as Eurodollar Holder Funding for a subsequent Interest
Period, or the date of conversion of any Base Rate Loan or Base Rate Holder
Funding into a Eurodollar Loan or Eurodollar Holder Funding), the Interest
Period on each such Eurodollar Loan or Eurodollar Holding Funding shall be one
month in length, subject however to any additional restrictions on Interest
Periods which may be set forth in the Operative Agreements (including without
limitation those restrictions set forth in the proviso to the definition of
"Interest Period").
3. Additional Amendments to Participation Agreement. Effective as of
June 25, 2000, subject to satisfaction of the conditions provided as set forth
in Section 9 hereof, the Participation Agreement is hereby amended, effective as
of the date hereof, as follows:
(a) Appendix A to the Participation Agreement is amended by
deleting the definitions of "Applicable Base Rate Margin", "Applicable
Margin" and "Existing Aviation Sales Credit Agreement", and inserting
in their place the following definitions:
" `Applicable Base Rate Margin' shall mean three and
one-quarter percent (3.25%) per annum."
" `Applicable Margin' shall mean four and
three-quarters percent (4.75%) per annum."
" `Existing Aviation Sales Credit Agreement' shall
mean that certain Fourth Amended and Restated Credit Agreement
dated as of May 31, 2000, by and among the co-borrowers party
thereto, Aviation Sales, Citicorp USA, Inc. as agent, and the
lenders and issuing banks party thereto, as amended by
Amendment No. 1 dated as of August 14, 2000, to Fourth Amended
and Restated Credit Agreement, but without giving effect to
any other amendment to such credit agreement."
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(b) Appendix A to the Participation Agreement is further
amended by deleting the definitions of "Performance Level 1",
"Performance Level 2" and "Performance Level 3".
4. Amendments to Lease Agreement. Subject to the conditions hereof, the
Lease Agreement is hereby amended, effective as of June 25, 2000, as follows:
(a) The first line of Section 25.2(b) of the Lease Agreement
is amended by deleting the phrase "without the consent of Lessor or the
Agent," and inserting in its place the following: "provided that Lessee
has obtained the written consent of the Agent (but not the Lessor),".
(b) Sections 28.41 through 28.4.7 of the Lease Agreement are
amended in their entirety so that as amended, those Sections shall read
as follows:
"28.4.1 Minimum Consolidated EBITDA.
Aviation Sales shall maintain Consolidated 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 Consolidated EBITDA
------------------ ----------------- ---------------------------
June 30, 2000 January 1, 2000 - June 30, 2000 $17,000,000
September 30, 2000 January 1, 2000 - September 30, 2000 $20,000,000
December 31, 2000 January 1, 2000 - December 31, 2000 $26,500,000
March 31, 2001 April 1, 2000 - March 31, 2000 $22,000,000
June 30, 2001 July 1, 2000 - June 30, 2001 $33,500,000
September 30, 2001 October 1, 2000 - September 30, 2001 $42,500,000
December 31, 2001 January 1, 2001 - December 31, 2001 $50,000,000
March 31, 2002 April 1, 2001 - March 31, 2002 $57,500,000
June 30, 2002 July 1, 2001 - June 30, 2002 $62,500,000
September 30, 2002 October 1, 2001 - September 30, 2002 $68,000,000
December 31, 2002 January 1, 2001 - December 31, 2002 $72,500,000
Each March 31, June 30, Four-Quarter Period then ending $72,500,000
September 30 and
December 31 thereafter
"28.4.2 Capital Expenditures. Aviation Sales
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"):
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Determination Date Applicable Period Maximum Amount
------------------ ----------------- --------------
June 30, 2000 January 1, 2000-- June 30, 2000 $13,000,000
September 30, 2000 January 1, 2000-- September 30, 2000 $14,000,000
December 31, 2000 January 1, 2000-- December 31, 2000 $16,000,000
March 31, 2001 Four-Quarter Period then ending $10,000,000
June 30, 2001 Four-Quarter Period then ending $10,000,000
September 30, 2001 Four-Quarter Period then ending $10,000,000
December 31, 2001 Four-Quarter Period then ending $10,000,000
March 31, 2002 Four-Quarter Period then ending $10,000,000
June 30, 2002 Four-Quarter Period then ending $10,000,000
Each September 30, December Four-Quarter Period then ending $10,000,000
31, March 31 and
June 30 thereafter
provided, however, to the extent Aviation Sales 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.
"28.4.3 Consolidated Fixed Charge Ratio.
Aviation Sales shall maintain a Consolidated Fixed
Charge Ratio for Aviation Sales 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:
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Determination Date Applicable Period Minimum Ratio
------------------ ----------------- -------------
March 31, 2001 Four-Quarter Period then ending 0.90 to 1.00
June 30, 2001 Four-Quarter Period then ending 0.90 to 1.00
September 30, 2001 Four-Quarter Period then ending 1.15 to 1.00
December 31, 2001 Four-Quarter Period then ending 1.50 to 1.00
March 31, 2002 Four-Quarter Period then ending 1.50 to 1.00
June 30, 2002 Four-Quarter Period then ending 1.75 to 1.00
September 30, 2002 Four-Quarter Period then ending 2.00 to 1.00
December 31, 2002 Four-Quarter Period then ending 2.25 to 1.00
March 31, 2003 Four-Quarter Period then ending 2.50 to 1.00
Each June 30, September 30, Four-Quarter Period then ending 2.50 to 1.00
December 31 and
March 31 thereafter
"28.4.4 Working Capital. Working Capital
shall be (a) $325,000,000 at June 30, 2000, (b)
$300,000,000 during the period September 30, 2000
through June 30, 2001, and (c) $275,000,000 at
September 30, 2001 and at all times thereafter during
the term of this Agreement, in each instance
determined at the end of each Fiscal Quarter
commencing with the Fiscal Quarter ending June 30,
2000.
"28.4.5 Minimum Tangible Net Worth. Aviation
Sales shall maintain a Tangible Net Worth of Aviation
Sales and its Subsidiaries, of at least the amount
set forth below for the Fiscal Quarter ending during
the period set forth below opposite such amount.
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Fiscal Quarter Ending Minimum Tangible Net Worth
--------------------- --------------------------
June 30, 2000 $132,500,000
September 30, 2000 $119,000,000
December 31, 2000 $109,000,000
March 31, 2001 $109,000,000
June 30, 2001 $114,000,000
September 30, 2001 $118,000,000
December 31, 2001 $124,000,000
March 31, 2002 $133,000,000
June 30, 2002 $142,000,000
Each September 30, December The amount of Tangible Net
31, March 31 and June 30 Worth required to be
thereafter maintained by this Section
28.4.5 as at the end of the
immediately preceding Fiscal
Quarter plus 85% of
Consolidated Net Income (with
no reduction for net losses
during any period) for the
Fiscal Quarter ending on such
date
"28.4.6 Leverage Ratio. Aviation Sales shall
maintain a ratio of Consolidated Funded Debt to
Consolidated EBITDA of Aviation Sales and its
Subsidiaries, determined as of the end of each Fiscal
Quarter ending on or after June 30, 2001 for the
Four-Quarter Period then ended, of not more than:
"Four-Quarter Period Ending Maximum Ratio
-------------------------- -------------
June 30, 2001 10.00 to 1.00
September 30, 2001 8.00 to 1.00
December 31, 2001 6.00 to 1.00
March 31, 2002 5.50 to 1.00
June 30, 2002 5.00 to 1.00
September 30, 2002 4.50 to 1.00
December 31, 2002 4.00 to 1.00
Each March 31, June 30, September 30 and 4.00 to 1.00
December 31 thereafter
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"28.4.7 Ratio of Senior Debt to EBITDA.
Aviation Sales shall maintain a Ratio of Senior Debt
to EBITDA for Aviation Sales and its Subsidiaries,
determined as of the end of each Fiscal Quarter
ending on or after December 31, 2000, for the
Four-Quarter Period then ended, of not more than:
"Four-Quarter Period Ending Maximum Ratio
-------------------------- -------------
December 31, 2000 7.00 to 1.00
March 31, 2001 7.75 to 1.00
June 30, 2001 5.50 to 1.00
September 30, 2001 4.00 to 1.00
December 31, 2001 3.00 to 1.00
March 31, 2002 2.50 to 1.00
June 30, 2002 2.25 to 1.00
September 30, 2002 2.25 to 1.00
December 31, 2001 2.00 to 1.00
Each March 31, June 30, September 30 and 2.00 to 1.00
December 31 thereafter
5. Consent to Amendment to Revolving Credit Agreement. Effective as of
June 25, 2000, subject to the Agent's receipt of the consent referenced in
Section 9(a)(ix) below on or before August 14, 2000, the parties signatory
hereto hereby consent to the amendment of the Existing Aviation Sales Credit
Agreement on the terms and conditions attached hereto as Exhibit A.
6. Approval of Certain Components in Calculations of Consolidated
EBITDA. The Lenders signatory hereto representing the Majority Lenders and the
Agent hereby confirm their approval, as required by clause (vi) of the
definition of "Consolidated EBITDA" in the Lease Agreement, of inclusion of the
items described on Exhibit B attached hereto and made a part hereof in the
calculation (as part of such clause (vi)) of Consolidated EBITDA for the periods
referenced on Exhibit B.
7. Agreement and Confirmation by Guarantors. Each of the undersigned
Guarantors has joined in the execution of this Amendment Agreement for the
purpose of (i) agreeing to the amendments to the Lease Agreement, the
Participation Agreement, the Credit Agreement, the Trust Agreement and other
Operative Agreements contained herein and (ii) confirming its guarantee of
payment of all Borrower's Liabilities (as defined in the Series A Guaranty
Agreement) and all Lessee's Liabilities (as defined in the Lessee Guaranty
Agreement).
8. Representations, Warranties and Covenants. The Lessee and the
Construction Agent hereby represent, warrant and covenant that:
(a) The representations and warranties made by the Lessee and
the Construction Agent in Section 7 (other than in Section 7.3(f)(i))
of the Participation
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Agreement are true on and as of the date hereof; and the
representations in warranties set forth in Section 7.3(f)(i) of the
Participation Agreement are true on and as of the date set forth in
such Section;
(b) (i) The audited consolidated financial statements of each
of the Construction Agent and the Lessee as at December 31, 1999,
copies of which have been furnished to the Agent and the Owner Trustee,
were prepared in accordance with GAAP and fairly present the financial
condition of each of the Construction Agent and the Lessee and their
Subsidiaries on a consolidated basis as of such date and their
consolidated results of operations for the fiscal year then ended and
(ii) the draft unaudited consolidated financial statements as at June
30, 2000, copies of which have previously been furnished to the Agent
and the Owner Trustee, were prepared in accordance with GAAP (subject
to normal year-end adjustments) and fairly present the financial
condition of the Construction Agent and the Lessee and their
Subsidiaries on a consolidated basis as of such date and their
consolidated results of operations for the fiscal quarter then ended.
Neither Aviation Sales nor any Guarantor or any Subsidiary of Aviation
Sales has, as of the date hereof, any Accommodation Obligation,
contingent liability or liability for any taxes, long-term leases or
commitments, not disclosed in writing to the Agent, the Lenders and the
Holders prior to the date hereof.
(c) This Amendment Agreement constitutes the legal, valid and
binding obligation of Aviation Sales and the Guarantors and is
enforceable against Aviation Sales in accordance with its terms. Each
of the Participation Agreement and the Lease Agreement, as previously
executed, delivered and amended and as amended by this Amendment
Agreements, constitute legal, valid and binding obligations of Aviation
Sales and are enforceable against Aviation Sales in accordance with
their respective terms.
(d) The business and properties of the Lessee and the
Construction Agent and the Guarantors and the Subsidiaries of Aviation
Sales are not, and since the Initial Closing Date have not been,
adversely affected in any substantial way as the result of any fire,
explosion, earthquake, accident, strike, lockout, combination of
workmen, flood, embargo, riot, activities of armed forces, war or acts
of God or the public enemy, or cancellation or loss of any major
contracts;
(e) No event has occurred and no condition exists which, after
giving effect to this Amendment Agreement, constitutes a Default or an
Event of Default on the part of the Lessee or the Construction Agent or
any Guarantor or any Subsidiary of Aviation Sales under the
Participation Agreement or any other Operative Agreement, either
immediately or with the lapse of time or the giving of notice, or both.
Since June 30, 2000, there has occurred no event with respect to the
Lessee, the Construction Agent or any Guarantor or any Subsidiary of
Aviation Sales which has resulted, or is reasonably likely to result,
in a Material Adverse Effect.
(f) Neither the Construction Agent nor the Agent is aware of
any change order, amendment or modification of the Construction Budget,
or amendment or modification to any Plans and Specifications for any
Property (collectively, "Change
8
Orders") that has been adopted or is planned, contemplated or under
consideration, other than the Permitted Change Orders (the "Permitted
Change Orders") identified on Schedule 8-F and approved by the Agent,
or the Submitted Change Orders (the "Submitted Change Orders")
identified on Schedule 8-F which have been submitted (or will be
submitted on or before September 30, 2000) to Agent but which Submitted
Change Orders remain subject to the Agent's approval. Each of the
Construction Agent and the Lessee hereby covenants and agrees that
unless it has obtained the prior written consent of the Agent thereto,
it will not (i) obtain, permit or approve any Change Order (other than
a Permitted Change Order or, the extent approved by the Agent, a
Submitted Change Order) with respect to any Property, or (ii) perform
or permit any work to be performed at any Property that would involve
any Change Order (other than a Permitted Change Order or, the extent
approved by the Agent, a Submitted Change Order) or other deviation
from the Construction Budget, the Plans and Specifications or any
construction contract with respect to any Property, in each case as
they exist on the date of this Amendment Agreement and have been
previously delivered to the Agent;
(g) On or before September 15, 2000, Aviation Sales shall
deliver to the Agent (i) a revised permanent Certificate of Occupancy
for the interior portion of the "Aviation Building" in Miramar,
Florida, which certificate shall not include the words "TEMP. EXTENSION
EXPIRES AUGUST 7, 2000" or any other indication that is is a temporary
certificate of occupancy or (ii) other evidence, in form and substance
satisfactory to the Agent (in its sole discretion), that the
Certificate of Occupancy for such interior portion is not temporary.
This Amendment Agreement shall be deemed to be an Operating Agreement
and any violation of a covenant contained herein shall be a violation of an
Operative Agreement.
9. Conditions Precedent. The effectiveness of this Amendment Agreement
shall be subject to fulfillment of the following conditions precedent:
(a) The Agent shall have received on the date hereof, in form
and substance satisfactory to the Agent, the following:
(i) a fully-executed original of this Amendment
Agreement;
(ii) an opinion of outside counsel to the Lessee and
the Guarantors, addressed to the Agent, the Owner Trustee and
the Lenders and Holders;
(iii) a certificate of the Secretary or an Assistant
Secretary of each of the Lessee and each Guarantor in such
form as is reasonably acceptable to the Agent attaching and
certifying as to (A) the resolutions of the Board of Directors
of Lessee or such Guarantor (as the case may be) duly
authorizing the execution, delivery and performance by Lessee
or such Guarantor (as the case may be) of this Amendment
Agreement and each of the other Operative Agreements delivered
in connection with this Amendment Agreement to which such
Lessee or Guarantor is or will be a party, (B) the fact that
neither its certificate of
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incorporation nor its bylaws have been changed from the
versions that were certified and delivered to the Agent on the
Initial Closing Date (or if they have been changed, such
certificate of incorporation or by-laws certified as of a
recent date by the Secretary of State of the State of its
incorporation), and (C) the incumbency and signature of
persons authorized to execute and deliver on its behalf this
Amendment Agreement and each of the other Operative Agreements
delivered in connection with this Amendment Agreement to which
such Lessee or Guarantor is a party; and
(iv) a fee (the "Amendment Fee") in the amount of
$200,000, in immediately available funds, paid by the Lessee
(as described in Exhibit C) to the Agent; plus evidence of the
payment of all other fees and amounts set forth in Exhibit C
attached hereto;
(v) an executed amendment to the Existing Aviation
Sales Credit Agreement (as in effect prior to the effective
date of this Amendment Agreement) in the form attached hereto
as Exhibit A or otherwise in form and substance satisfactory
to the Agent, Lenders and Holders;
(vi) a plan and financial forecast consisting of a
balance sheet, income statement and statement of cash flows by
month for the Fiscal Year ending December 31, 2000,
accompanied by a discussion of the underlying assumptions with
respect to each of the business segments referred to as
"Distribution", "Xxxxx Aerospace", "Aerocell", "Caribe",
"Airframe Maintenance/Engine Overhaul", "Apex", "Xxxxx-Xxxxx",
and "Leasing" prepared by Aviation Sales and its Subsidiaries,
in form and substance satisfactory to the Agent;
(vii) a plan and financial forecast for each of the
Fiscal Years ending December 31, 2001 and December 31, 2002,
including forecasted consolidated balance sheet, income
statement, and statement of cash flow for Aviation Sales and
its Subsidiaries for each such Fiscal Year;
(viii) projected cash flow statements of Aviation
Sales and its Subsidiaries, by week, for the period August 7,
2000 - September 29, 2000;
(ix) a written consent of the obligee parties to the
Existing Aviation Sales Credit Agreement to the terms of this
Amendment Agreement in form and substance satisfactory to the
Agent (which consent may be included in the amendment
agreement referred to in clause (v) above);
(x) a waiver of all events of default which exist as
of August 14, 2000, if any, under any loan agreement(s)
(collectively, the "Norlease Agreement") among Norlease, Inc.,
Aviation Sales SPS I, Inc., and Aviation Sales Company and the
rights and remedies of the parties thereunder arising with
respect thereto pursuant to an agreement in form and substance
satisfactory to the Agent;
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(xi) (A) down-dating endorsements of the title
policies issued to the Owner Trustee and the Agent, with
respect to the Miramar Property, such endorsements reflecting
the transaction documents, as amended hereby, and showing no
additional exceptions to coverage, except as approved by the
Agent (in its sole discretion) and (B) down-dating
endorsements of such policies with respect to the Funding in
July, 2000, showing no additional exceptions to coverage
except as approved by the Agent (in its sole discretion);
(xii) an effective permanent Certificate of Occupancy
for the interior of the "Aviation Building" in the Property
located in Miramar, Florida;
(xiii) a fully-executed modification of the
Memorandum of Lease and Lease Supplement and Mortgage with
respect to the Property in Miramar, Florida;
(xiv) any additional agreements, instruments or
documents which it may reasonably request in connection
herewith;
(b) The correctness in all material respects on the date
hereof of the representations and warranties of the Owner Trustee,
Construction Agent and the Lessee contained herein and in each of the
Operative Agreements;
(c) No Default or Event of Default shall have occurred and be
continuing on the date hereof; and as of the date hereof no "Event of
Default" shall have occurred and be continuing under the terms of the
Existing Aviation Sales Credit Agreement, the Norlease Agreement or the
Indenture under which the Senior Subordinated Notes have been issued,
as supplemented through the date of this Amendment Agreement and no
"Change of Control" (as defined in such Indenture) shall have occurred;
(d) No material adverse change shall have occurred (as
certified to the Agent, the Lenders and the Holders by the respective
chief financial officers) in the business, assets, management,
operations, financial condition or prospects of Aviation Sales or any
Guarantor or any Subsidiary of Aviation Sales since June 30, 2000;
(e) Since March 31, 2000, no permit, agreement, lease, or
license which, in the judgment of the Agent, is material to the
business, operations or employee relations of Aviation Sales or any
Guarantor or any Subsidiary of Aviation Sales, including without
limitation, any agreement relating to the Existing Aviation Sales
Credit Agreement or the Senior Subordinated Notes (as defined in the
Existing Aviation Sales Credit Agreement), shall have been terminated,
modified, revoked, breached, or declared to be in default, or if
breached or declared to be in default during such period, such breach
or default shall have been cured or waived on terms satisfactory to the
Agent and Lenders; and
(f) None of the members of Aviation Sales' Board of Directors
as of March 31, 2000 shall have ceased acting as members of such Board
of Directors.
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10. Release.
(a) Aviation Sales and its Subsidiaries acknowledge that they
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 Amendment Agreement, each of
Aviation Sales and each of 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 Amendment 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 or 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 each of 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.
(b) 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 each of 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 each of 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
Section 10. 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.
(c) The acceptance and delivery of this Amendment Agreement by
the Agent on behalf of the Released Parties shall not be deemed or
construed as an admission of
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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 Section 10.
(d) Each of Aviation Sales and each of 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 Section 10; (ii) such party has had
advice of counsel of its own choosing in negotiations for and the
preparation of this Amendment Agreement; and (iii) such party is fully
aware of the effect of releases such as that contained in this Section
10.
11. Entire Agreement. This Amendment Agreement sets forth the entire
understanding and agreement of the parties hereto in relation to the subject
matter hereof and supersedes any prior negotiations and agreements among the
parties relative to such subject matter. No promise, conditions, representation
or warranty, express or implied, not herein set forth shall bind any party
hereto, and no one of them has relied on any such promise, condition,
representation or warranty. Each of the parties hereto acknowledges that, except
as in this Amendment Agreement otherwise expressly stated, no representations,
warranties or commitments, express or implied, have been made by any other party
to the other. None of the terms or conditions of this Amendment Agreement may be
changed, modified, waived or canceled orally or otherwise, except by writing,
signed by all the parties hereto, specifying such change, modification, waiver
or cancellation of such terms or conditions, or of any proceeding or succeeding
breach thereof.
12. Full Force and Effect of Operative Agreements. Except as hereby
specifically amended, modified or supplemented, the Participation Agreement, the
Lease, the Credit Agreement, the Trust Agreement, the Guaranty Agreements and
all of the other Operative Agreements are hereby confirmed and ratified in all
respects and shall remain in full force and effect according to their respective
terms.
13. Counterparts. This Amendment Agreement may be executed in one or
more counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
[Remainder of page intentionally left blank.]
13
IN WITNESS WHEREOF, the parties hereto have caused this Amendment
Agreement to be duly executed by their duly authorized officers, all as of the
day and year first above written.
AVIATION SALES COMPANY,
as Construction Agent
By:_____________________________________
Name:____________________________________
Title:_____________________________________
AVIATION SALES COMPANY,
as Lessee
By:______________________________________
Name:____________________________________
Title:_____________________________________
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:_______________________________________
Name:____________________________________
Title:_____________________________________
BANK OF AMERICA, N.A., as a Holder and as
a Lender
By:_______________________________________
Name:____________________________________
Title:_____________________________________
BANK OF AMERICA, N.A., as Administrative
Agent
By:_______________________________________
Name:____________________________________
Title:_____________________________________
SIGNATURE PAGE 1 OF 3
JOINDER BY GUARANTORS
The undersigned Guarantors hereby join in and consent to this Amendment
Agreement.
AVIATION SALES COMPANY
AVIATION SALES MANUFACTURING COMPANY
AVIATION SALES PROPERTY MANAGEMENT CORP.
AVIATION SALES FINANCE COMPANY
TIMCO ENGINE CENTER, INC.
AVS/XXXXX-XXXXX MACHINE COMPANY
APEX MANUFACTURING, INC.
AEROCELL STRUCTURES, INC.
AVIATION SALES DISTRIBUTION SERVICES COMPANY
AVIATION SALES BEARINGS 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:____________________________________________
Name:__________________________________________
Title:________________ of each of the foregoing
Guarantors
AVSRE, L.P.
By: Aviation Sales Property Management Corp.,
its general partner
By:__________________________________
Name:________________________________
Title:_______________________________
SIGNATURE PAGE 2 OF 3
AVIATION SALES SPS I, INC.
By:________________________________________
Name:______________________________________
Title:_____________________________________
SIGNATURE PAGE 3 OF 3
