1
EXHIBIT 10.3
FOURTEENTH AMENDMENT TO AMENDED
AND RESTATED LOAN AND SECURITY AGREEMENT
THIS FOURTEENTH AMENDMENT TO AMENDED AND RESTATED LOAN AND SECURITY
AGREEMENT (this "AMENDMENT") is made and entered into as of the 15th day of
August, 2001, by and among the financial institutions party hereto (the
"LENDERS"), BANK OF AMERICA, N.A., formerly NATIONSBANK, N.A., as agent for the
Lenders (the "AGENT"), XXXXXXXXX INDUSTRIES, INC. ("XXXXXXXXX"), and certain
Subsidiaries of Xxxxxxxxx (together with Xxxxxxxxx, the "BORROWERS").
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, the Agent, the Lenders, Banc of America Securities LLC, f/k/a
NationsBanc Xxxxxxxxxx Securities LLC, as Syndication Agent, and the Borrowers
entered into that certain Amended and Restated Loan and Security Agreement,
dated as of December 14, 1998 (as amended, the "LOAN AGREEMENT"), pursuant to
which the Lenders agreed to extend certain financial accommodations to the
Borrowers; and
WHEREAS, Xxxxxxxxx has requested that the Agent and the Lenders amend
certain provisions of the Loan Agreement; and
WHEREAS, the Agent and the Lenders are willing to enter into this
Amendment on the terms set forth herein.
NOW, THEREFORE, in consideration of the foregoing premises, and other
good and valuable consideration, the receipt and legal sufficiency of which is
hereby acknowledged, the parties hereto hereby agree as follows:
1. DEFINED TERMS. 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. AMENDMENTS TO LOAN AGREEMENT.
(a) The Loan Agreement is amended by deleting the definition
of "Revolving Credit Facility" in SECTION 1.1 replacing it with the
following in lieu thereof:
"REVOLVING CREDIT FACILITY" means the principal
amount of $220,000,000 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.
2
(b) The Loan Agreement is amended by deleting Annex II and
replacing such Annex with the new Annex II in the form attached hereto.
3. REAFFIRMATION OF REPRESENTATIONS AND WARRANTIES. The Borrowers
hereby restate, ratify, and reaffirm each and every term, condition,
representation and warranty heretofore made by them under or in connection with
the execution and delivery of the Loan Agreement as amended hereby and the other
Loan Documents (in each case, as amended through and including the date hereof)
as fully as though such representations and warranties had been made on the date
hereof and with specific reference to this Amendment and the Loan Documents.
4. FEES, COSTS AND EXPENSES. The Borrowers agree to pay on demand all
costs and expenses of the Agent in connection with the preparation, execution,
delivery and enforcement of this Amendment and all other Loan Documents and any
other transactions contemplated hereby, including, without limitation, the fees
and out-of-pocket expenses of legal counsel to the Agent.
5. NO EVENT OF DEFAULT; NO OFFSET, COUNTERCLAIM. To induce the Agent
and the Lenders to enter into this Amendment, the Borrowers hereby (a) 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 under the Loan Agreement or
any of the Loan Documents except for the Specified Defaults described in the
Thirteenth Amendment and Forbearance Agreement dated as of August 15, 2001 among
the Borrowers, the Agent and the Lenders; and (b) acknowledge and agree that no
right of offset, defense, counterclaim, claim, causes of action or objection in
favor of the Borrowers against the Agent or any Lender exists arising out of or
with respect to any of the Secured Obligations, the Loan Agreement, any of the
other Loan Documents, or with respect to the administration or funding of the
Loans.
6. NO OTHER AGREEMENT OR COURSE OF DEALING. To induce the Agent and the
Lenders to enter into this Amendment, the Borrowers hereby acknowledge 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 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.
7. To induce the Agent and the Lenders to enter into this Agreement and
grant the accommodations set forth herein, the Borrowers (a) acknowledge and
agree that no right of offset, defense, counterclaim, claim or objection exists
in favor of the Borrowers against the Agent or any Lender arising out of or with
respect to the Loan Agreement, the other Loan Documents, the Secured
2
3
Obligations, or any other arrangement or relationship between the Agent, the
Lenders and the Borrowers, and (b) release, acquit, remise and forever discharge
the Agent, the Lenders, and each of the Agent's and Lenders' 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 the Borrowers
now or hereafter may have by reason of any manner, cause or things to and
including the date of this Agreement 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, the
Lenders and the Borrowers.
8. MISCELLANEOUS. The Borrowers agree to take such further action as
the Agent shall reasonably request in connection herewith to evidence the
amendments herein contained to the Loan Agreement (including, without
limitation, the execution and delivery of new Revolving Credit Notes). This
Amendment may be executed in any number of counterparts and by different parties
hereto in separate counterparts, each of which, when so executed and delivered,
shall be deemed to be an original and all of which counterparts, taken together,
shall constitute but one and the same instrument. This Amendment shall be
binding upon and inure to the benefit of the successors and permitted assigns of
the parties hereto. This Amendment shall be governed by, and construed in
accordance with, the laws of the State of Georgia, other than its laws
respecting choice of law. As amended hereby, the Loan Agreement shall be and
remain in full force and effect, and shall constitute the legal, valid, binding
and enforceable obligations of the Borrowers to the Agent and the Lenders.
[Signatures Begin on Next Page]
3
4
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the date first above written.
BORROWERS:
Xxxxxxxxx Industries, Inc.
By:
-------------------------------------------------
Name:
-----------------------------------------------
Title:
----------------------------------------------
XXXXXXXXX COMMERCIAL AIRCRAFT, INC.
By:
-------------------------------------------------
Name:
-----------------------------------------------
Title:
----------------------------------------------
XXXXXXXXX XXXXXX, INC.
By:
-------------------------------------------------
Name:
-----------------------------------------------
Title:
----------------------------------------------
CERTIFIED AIRCRAFT PARTS, INC.
By:
-------------------------------------------------
Name:
-----------------------------------------------
Title:
----------------------------------------------
AIRCRAFT 21801, INC.
By:
-------------------------------------------------
Name:
-----------------------------------------------
Title:
----------------------------------------------
AIRCRAFT 21805, INC.
By:
-------------------------------------------------
Name:
-----------------------------------------------
Title:
----------------------------------------------
4
5
AGENT:
BANK OF AMERICA, N.A., formerly,
NationsBank, N.A., as agent
By:
-------------------------------------------------
Xxxxxx X. Xxxxxx
Senior Vice President
LENDERS:
BANK OF AMERICA, N.A. formerly,
NationsBank, N.A.
By:
-------------------------------------------------
Xxxxxx X. Xxxxxx
Senior Vice President
UNION PLANTERS BANK, N.A.
By:
-------------------------------------------------
Name:
-----------------------------------------------
Title:
----------------------------------------------
BANK LEUMI LE-ISRAEL B.M., Miami Agency
By:
-------------------------------------------------
Name:
-----------------------------------------------
Title:
----------------------------------------------
IBJ WHITEHALL FINANCIAL GROUP
By:
-------------------------------------------------
Name:
-----------------------------------------------
Title:
----------------------------------------------
5
6
COMERICA BANK
By:
-------------------------------------------------
Name:
-----------------------------------------------
Title:
----------------------------------------------
MICHIGAN NATIONAL BANK, as successor in interest to
MELLON BANK, N.A.
By:
-------------------------------------------------
Name:
-----------------------------------------------
Title:
----------------------------------------------
FIRST UNION NATIONAL BANK
By:
-------------------------------------------------
Name:
-----------------------------------------------
Title:
----------------------------------------------
THE CIT GROUP/BUSINESS CREDIT, INC.
By:
-------------------------------------------------
Name:
-----------------------------------------------
Title:
----------------------------------------------
GENERAL ELECTRIC CAPITAL CORPORATION
By:
-------------------------------------------------
Name:
-----------------------------------------------
Title:
----------------------------------------------
NATIONAL BANK OF CANADA, a Canadian chartered bank
By:
-------------------------------------------------
Name:
-----------------------------------------------
Title:
----------------------------------------------
6
7
BANKATLANTIC, a Federal Savings Bank
By:
-------------------------------------------------
Name:
-----------------------------------------------
Title:
----------------------------------------------
NATIONAL CITY COMMERCIAL FINANCE, INC.
By:
-------------------------------------------------
Name:
-----------------------------------------------
Title:
----------------------------------------------
PNC BANK, N.A.
By:
-------------------------------------------------
Name:
-----------------------------------------------
Title:
----------------------------------------------
SOUTHTRUST BANK
By:
-------------------------------------------------
Name:
-----------------------------------------------
Title:
----------------------------------------------
SUNTRUST BANK, ATLANTA
By:
-------------------------------------------------
Name:
-----------------------------------------------
Title:
----------------------------------------------
By:
-------------------------------------------------
Name:
-----------------------------------------------
Title:
----------------------------------------------
7
