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Exhibit 10.72
ELEVENTH AMENDMENT AND WAIVER TO AMENDED
AND RESTATED LOAN AND SECURITY AGREEMENT
THIS ELEVENTH AMENDMENT AND WAIVER TO AMENDED AND RESTATED LOAN AND
SECURITY AGREEMENT (this "Amendment") is made and entered into as of the 30th
day of March, 2001, by and among the Lenders (as defined below) party hereto
(the "Approving 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 financial institutions from time to time party
thereto (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 desires to refinance some or all of the Convertible
Subordinated Notes pursuant to the Exchange Offer described below; and
WHEREAS, pursuant to the terms of the Loan Agreement, such refinancing and
Exchange Offer require the approval of the Agent and the Required Lenders; and
WHEREAS, the Borrowers have failed to comply with certain financial
covenants set forth in the Loan Agreement and have requested the waiver of such
non-compliance; and
WHEREAS, pursuant to the terms of the Loan Agreement, such waiver requires
the approval of the Agent and the Required Lenders; and
WHEREAS, the Agent and the Approving Lenders, whose Commitments are such
that they constitute the Required Lenders, are willing to grant such approvals
and 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:
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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. Consent to Exchange Offer Transactions. In reliance upon the
representations, warranties, agreements and covenants of the Borrowers set forth
herein and in the Loan Agreement, as amended hereby, but subject to Section 6 of
this Amendment, the Agent and the Approving Lenders hereby consent to the
exchange of some or all of the Convertible Subordinated Notes for the Exchange
Notes in accordance with the terms and conditions of the Exchange Offer Offering
Memorandum and pursuant to definitive legal documents reasonably acceptable to
the Agent.
3. Amendments to Loan Agreement.
3.1. The Loan Agreement is amended by inserting the following definitions
in appropriate alphabetical order in SECTION 1.1:
"Exchange Notes" means those certain 8.5% Senior Subordinated Notes
due 2008, and those certain 6.0% Subordinated Notes due 2008, in each case
issued by Xxxxxxxxx pursuant to the Exchange Offer in accordance with the
terms and conditions of the Exchange Offer Offering Memorandum and
pursuant to definitive legal documents reasonably acceptable to the Agent.
"Exchange Offer" means the exchange offer whereby Xxxxxxxxx offers
to the holders of the Convertible Subordinated Notes to exchange some or
all of such Convertible Subordinated Notes for the Exchange Notes.
"Exchange Offer Offering Memorandum" means the March 8, 2001
Offering Memorandum delivered by or on behalf of Xxxxxxxxx to the holders
of the Convertible Subordinated Notes in connection with the Exchange
Offer, without amendment or modification (other than to reflect the
inclusion of Xxxxxxxxx'x year-end financial statements or to complete
items normally left blank on a "red xxxxxxx prospectus"), except as
consented to by the Approving Lenders.
"Excluded Fees" means, for any period, (a) all closing and consent
fees paid by the Borrowers to the Agent and the Lenders in connection with
the closing of the Eleventh Amendment to this Agreement but only to the
extent accrued during such period, and (b) all costs, fees and expenses
paid by the Borrowers in connection with the Exchange Offer to the extent
paid during such period.
"Increased Exchange Offer Interest" means, for any period, the
excess of (a) the amount of interest paid in cash during such period by
the Borrowers with respect to the Exchanges Notes and the Convertible
Subordinated Notes, over (b) the amount of interest that would have been
paid in cash during such period by the
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Borrowers with respect to the Convertible Subordinated Notes if the
Exchange Offer had not been consummated.
3.2. The Loan Agreement is amended by deleting the definitions of
"Adjusted Net Worth", "Convertible Subordinated Notes", "EBITDA", "Fixed
Charges", "Permitted Acquisitions", "Restricted Payment" and "Subordinated
Indebtedness" set forth in SECTION 1.1 and substituting the following in lieu
thereof:
"Adjusted Net Worth" means the Consolidated Net Worth of the
Borrowers and their Consolidated Subsidiaries, less the amount included
therein for any amounts due from Affiliates, plus, in the case of all
calculations thereof on and after the effective date of the Eleventh
Amendment to this Agreement, all Excluded Fees and Increased Exchange
Offer Interest.
"Convertible Subordinated Notes" means those certain $54,000,000
5.75% Convertible Subordinated Notes due 2002, as more particularly
described in that certain Indenture dated as of October 10, 1997, by and
between Xxxxxxxxx and First Union National Bank, as trustee, and those
certain $86,250,000 5.5% Convertible Subordinated Notes due 2003, as more
particularly described in that certain Indenture dated as of June 17,
1998, by and between Xxxxxxxxx and First Union National Bank, as trustee,
in each case excluding those Convertible Subordinated Notes that are
exchanged for Exchange Notes.
"EBITDA" means, for any period, net income before provision for
Interest Expense, Excluded Fees, income tax expense, depreciation expense
and amortization expense, and, in the case of any period including the
fiscal quarter ending on December 31, 2000, before charges taken during
such fiscal quarter with respect to inventory write-downs, the sale of
Real Estate, and write-downs of computer system assets in an aggregate
amount not to exceed $53,000,000.
"Fixed Charges" means, for any period, (a) Interest Expense
(excluding, however, Increased Exchange Offer Interest), plus (b) payments
of principal actually made in cash with respect to Indebtedness for Money
Borrowed (other than payments under the Loans), including payment with
respect to Capitalized Leases, plus (c) earn-out payments to the
shareholders of Business Units acquired by a Borrower.
"Permitted Acquisitions" means Acquisitions of Persons or Business
Units in the business related to the businesses of the Borrowers provided
(a) no Default or Event of Default exists before or after giving effect to
such Acquisition, (b) the Borrowers are in compliance with the covenants
set forth in SECTIONS 11.1, 11.2, 11.10 and 11.11 on a pro forma basis
after giving effect to such Acquisition, (c) the Borrowers' and their
Consolidated Subsidiaries Consolidated Fixed Charge Coverage ratio, as
calculated in accordance with SECTION 11.1(C) for the twelve
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fiscal months most recently ended on a pro forma basis after giving effect
to such Acquisition, shall be 1.50 to 1 or greater, (d) simultaneously
with the consummation of such Acquisition, the Borrowers deliver to the
Agent a certificate of the Financial Officer (i) setting forth the
calculations required to establish the Borrowers' pro forma compliance
with the requirements of SECTIONS 11.1, 11.2, 11.10 and 11.11 as of the
date of the consummation of such Acquisition and the Borrowers' compliance
with clause (c) above, and (ii) stating that no Default or Event of
Default exists before or after giving effect to such Acquisition, (e)
immediately after giving effect to the consummation of such Acquisition
(including any Loans made hereunder to finance any portion of such
Acquisition), Availability must be greater than $25,000,000, (f)
Availability must remain above $20,000,000 for each of the 90 days after
the date on which such Acquisition is consummated, (g) the purchase price
for such Acquisition must not exceed $30,000,000, (h) the purchase price
for all such Acquisitions consummated during any fiscal year must not
exceed $40,000,000, and (i) the Borrowers shall, in the case of all
Inventory (including engines, aircraft and airframes, and parts) that is
purchased through a single Acquisition and that has a book value of
$20,000,000 or more, or that is purchased through a series of Acquisitions
and that has a book value of $30,000,000 or more in the aggregate, deliver
to the Agent an appraisal, in form and substance satisfactory to the Agent
and from an independent appraiser acceptable to the Agent, within 90 days
after the consummation of such Acquisition.
"Restricted Payment" means (a) any redemption or prepayment or other
retirement, prior to the stated maturity thereof or prior to the due date
of any regularly scheduled installment or amortization payment with
respect thereto, of any Indebtedness for Money Borrowed, (b) any
redemption, retirement or payment with respect to the Subordinated
Indebtedness other than in accordance with any subordination agreement or
provisions applicable thereto, (c) the payment by any Person of the
principal amount of or interest on any Indebtedness (other than trade
debt) owing to a shareholder, partner or equity holder of such Person or
to any Affiliate of any such shareholder, partner or equity holder, and
(d) the payment of any management, consulting or similar fee by any Person
to any Affiliate of such Person; PROVIDED that the foregoing shall not
prohibit (i) any redemption or retirement of the Convertible Subordinated
Notes in connection with the conversion of such Convertible Subordinated
Notes to equity in accordance with the terms thereof, or (ii) any
redemption or retirement of the Convertible Subordinated Notes solely in
exchange for Exchange Notes in accordance with the terms of the Exchange
Offer Offering Memorandum and pursuant to definitive legal documents
reasonably acceptable to the Agent.
"Subordinated Indebtedness" means (a) the Indebtedness of the
Borrowers evidenced by the Convertible Subordinated Notes, including all
principal, interest and premium, if any, thereon, (b) the Key Subordinated
Loan, including all principal, interest and premium, if any, thereon, (c)
the Indebtedness of the Borrowers evidenced by the Exchange Notes,
including all
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principal, interest and premium, if any, thereon, and (d) any other
Indebtedness for Money Borrowed of the Borrowers which is subordinated to
the Secured Obligations on terms and conditions acceptable to the Agent
and the Required Lenders in their sole discretion.
3.3. The Loan Agreement is amended by deleting SECTION 4.22 and
substituting the following in lieu thereof:
SECTION 4.22. Designated Senior Indebtedness. The Borrowers and the
Secured Parties hereby agree that the Secured Obligations constitute (a)
"Designated Senior Indebtedness" as defined in the Indentures relating to the
Convertible Subordinated Notes and the Exchange Notes, and (b) "Senior Debt" as
defined in the Key Subordinated Loan Documents.
3.4. The Loan Agreement is amended by deleting CLAUSE (I) of SECTION
6.1(GG) and substituting the following in lieu thereof:
(i) Subordinated Indebtedness. The Secured Obligations constitute
(A) "Designated Senior Indebtedness" as defined in the Indentures relating
to the Convertible Subordinated Notes and the Exchange Notes, and (B)
"Senior Debt" as defined in the Key Subordinated Loan Documents.
3.5. The Loan Agreement is amended by deleting SECTION 8.12(F) and
substituting the following in lieu thereof:
(f) Appraisals. (i) The Borrowers shall deliver to the Agent
appraisals of all aircraft owned by any Borrower or Trust, which
appraisals shall set forth the Fair Market Value of the airframe,
each engine and the aircraft as a whole, and which appraisals shall
be delivered to the Agent (A) prior to and including any item of
Airframe Inventory on the Borrowing Base, (B) promptly, and in any
event within 60 days after, June 30th of each year (such appraisals
to be based on the Borrowers' and Trusts' owned aircraft as of such
June 30th), and (C) promptly, and in any event within 60 days after,
December 31st of each year (such appraisals to be based on the
Borrowers' and Trusts' owned aircraft as of such December 31st).
(ii) The Borrowers shall deliver to the Agent appraisals
of all Engines leased by any Borrower, which appraisals shall set
forth the Fair Market Value of such leased Engines and shall contain
separate categories for foreign leased Engines and domestic leased
Engines, and which appraisals shall be delivered to the Agent (A)
promptly, and in any event within 60 days after, June 30th of each
year (such appraisals to be
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based on the Borrowers' leased Engines as of such June 30th), and
(B) promptly, and in any event within 60 days after, December 31st
of each year (such appraisals to be based on the Borrowers' leased
Engines as of such December 31st).
(iii) The Borrowers shall deliver to the Agent
appraisals of all Parts Inventory and all non-leased Engines, which
appraisals shall set forth the Orderly Liquidation Value of such
Parts Inventory and non-leased Engines and shall contain separate
categories for Parts Inventory and non-leased Engines, and which
appraisals shall be delivered to the Agent (A) promptly, and in any
event within 60 days after, March 31st of each year (such appraisals
to be based on the Borrowers' Parts Inventory and non-leased Engines
as of such March 31st), (B) promptly, and in any event within 60
days after, June 30th of each year (such appraisals to be based on
the Borrowers' Parts Inventory and non-leased Engines as of such
June 30th), (C) promptly, and in any event within 60 days after,
September 30th of each year (such appraisals to be based on the
Borrowers' Parts Inventory and non-leased Engines as of such
September 30th), and (D) promptly, and in any event within 60 days
after, December 31st of each year (such appraisals to be based on
the Borrowers' Parts Inventory and non-leased Engines as of such
December 31st).
(iv) Each appraisal shall be conducted at the Borrowers'
expense by an appraiser satisfactory to the Agent in its reasonable
discretion, and each appraisal shall be in form reasonably
acceptable to the Agent. Advance rates against Eligible Domestic
Leased Engine Inventory, Eligible Foreign Leased Engine Inventory,
Eligible Leased Airframe Inventory and Eligible Inventoried Engine
and Parts Inventory shall be adjusted by the Agent based on the
appraisals in accordance with the definition of Borrowing Base,
which adjustment shall take place within 10 days of the Agent's
receipt of all such appraisals.
3.6. The Loan Agreement is amended by deleting SECTION 9.13 and
substituting the following in lieu thereof:
SECTION 9.13 AVS Investor Letters of Credit. (a) The Borrowers shall
cause the AVS Investor Letters of Credit to remain in full force and
effect, available for drawing in accordance with the terms thereof and the
terms of this SECTION 9.13, until the earlier of (i) the stated maturity
thereof, (ii) the date on which the Agent shall have drawn the aggregate
face amount thereof, or (iii) the date on which such AVS Investor Letters
of Credit are returned by the Agent to the issuers thereof in accordance
with clause (e) of this SECTION 9.13.
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(b) The Agent may, and at the direction of the Required Lenders
shall, make draws under the AVS Investor Letters of Credit (any such draws
to be ratable among the AVS Investor Letters of Credit) in accordance with
the draw conditions set forth in the AVS Investor Letters of Credit. In
the event that (i) the Agent does not make draws under the AVS Investor
Letters of Credit during the existence of an Event of Default under
SECTION 11.16 (an "Availability Default"), and (ii) the amount available
to be drawn by the Agent under the AVS Investor Letters of Credit at such
time is equal to or greater than the deficiency in Availability required
to be maintained under SECTION 11.16, neither the Agent nor any Lender
shall be permitted to exercise any remedy against any Borrower under
SECTION 12.2 of the Loan Agreement solely as a result of such Availability
Default; provided, however, that this SECTION 9.13(b) shall not prohibit
the Agent or any Lender from exercising any such remedy with respect to
any Event of Default other than any Availability Default with respect to
which the foregoing clause (ii) is satisfied.
(c) Upon the request of Xxxxxxxxx during an Availability Default,
the Agent shall draw upon the AVS Investor Letters of Credit an aggregate
amount up to the amount necessary to cause the Borrowers to be in
compliance with SECTION 11.16 by applying the amount drawn to the Secured
Obligations in accordance with the terms of this Agreement.
(d) The Agent and the Lenders hereby acknowledge and agree that,
prior to the later of (i) the expiration or termination of the AVS
Investor Letters of Credit, or (ii) the repayment in full of all AVS
Investor Indebtedness, the Agent and the Lenders shall not consent to any
granting by Xxxxxxxxx of any Lien on the VRDN Real Estate; provided,
however, that this sentence shall not be construed to permit Xxxxxxxxx to
grant any such Lien at any time.
(e) The Agent shall, promptly following the consummation of a
Permitted Sale-Leaseback of the VRDN Real Estate in accordance with the
terms of this Agreement (including the receipt by Xxxxxxxxx of the minimum
net proceeds required under the definition of Permitted Sale-Leaseback),
deliver the original AVS Investor Letters of Credit to the issuers thereof
for cancellation.
3.7. The Loan Agreement is amended by deleting SECTIONS 11.1(a), (b), (c)
and (D) thereof and substituting the following in lieu thereof:
(a) Minimum Consolidated Adjusted Net Worth. Permit the Consolidated
Adjusted Net Worth of the Borrowers and their Consolidated Subsidiaries to
be less than the applicable minimum amount set forth below as of the end
of any of the fiscal quarters set forth below:
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MINIMUM CONSOLIDATED
FISCAL QUARTER END ADJUSTED NET WORTH
------------------ ------------------
December 31, 2000 $141,000,000
March 31, 2001 $135,500,000
June 30, 2001 $133,500,000
September 30, 2001 $133,843,000
December 31, 2001 $134,500,000
March 31, 2002 $135,500,000
June 30, 2002 $137,000,000
September 30, 2002 $138,000,000
December 31, 2002 $143,000,000
and each fiscal
quarter end
thereafter
(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
the applicable maximum ratio set forth below as of the end of any of the
fiscal quarters set forth below:
MAXIMUM CONSOLIDATED
FISCAL QUARTER END FUNDED INDEBTEDNESS TO
CONSOLIDATED EBITDA RATIO
------------------ ------------------------
December 31, 2000 6.50 to 1
March 31, 2001 8.00 to 1
June 30, 2001 9.25 to 1
September 30, 2001 9.50 to 1
December 31, 2001 9.00 to 1
March 31, 2002 7.50 to 1
June 30, 2002 6.50 to 1
September 30, 2002 6.50 to 1
December 31, 2002 6.50 to 1
and each fiscal
quarter end
thereafter
(c) Minimum Consolidated Fixed Charge Coverage Ratio. Permit the
ratio of (i) the Consolidated EBITDA of the Borrowers and their
Consolidated Subsidiaries, minus income taxes paid in cash, Unfunded
Capital Expenditures and dividends, to (ii) the Consolidated Fixed Charges
of the Borrowers and their Consolidated Subsidiaries, as of the end of any
fiscal quarter of the Borrowers, measured for the immediately preceding
four fiscal quarters, to be less than the
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applicable minimum ratio set forth below as of the end of any of the
fiscal quarters set forth below:
MINIMUM CONSOLIDATED
FISCAL QUARTER END FIXED CHARGE COVERAGE
RATIO
------------------ ----------------------
December 31, 2000 1.50 to 1
March 31, 2001 1.00 to 1
June 30, 2001 1.00 to 1
September 30, 2001 1.00 to 1
December 31, 2001 1.00 to 1
March 31, 2002 1.25 to 1
June 30, 2002 1.50 to 1
September 30, 2002 1.50 to 1
December 31, 2002 1.50 to 1
and each fiscal
quarter end
thereafter
provided, however, that any amount paid by the Borrowers (a) to purchase
the AVSDC Leased Assets in accordance with SECTION 11.20, and (b) with
respect to principal in connection with the prepayment of the Equitable
Subordinated Loan and the prepayment fee in connection therewith (but not
accrued interest with respect thereto), shall be excluded from this
calculation.
(d) Minimum Consolidated EBITDA. Permit the Consolidated EBITDA of
the Borrowers and their Consolidated Subsidiaries as of the end of any
fiscal month of the Borrowers, measured for the immediately preceding
three fiscal months, to be less than the applicable minimum amount set
forth below as of the end of any of the fiscal months set forth below:
MINIMUM CONSOLIDATED
FISCAL MONTH END EBITDA
---------------- --------------------
March 31, 2001 $4,000,000
April 30, 2001 $5,200,000
May 31, 2001 $7,200,000
June 30, 2001 $9,245,000
July 31, 2001 $9,750,000
August 31, 2001 $10,500,000
September 30, 2001 $11,000,000
October 31, 2001 $11,000,000
November 30, 2001 $11,500,000
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MINIMUM CONSOLIDATED
FISCAL MONTH END EBITDA
---------------- --------------------
December 31, 2001 $12,000,000
and each fiscal
month end thereafter
3.8. The Loan Agreement is amended by deleting CLAUSE (e) of SECTION 11.2
and substituting the following in lieu thereof:
(e) the Subordinated Indebtedness, including the Subordinated
Indebtedness evidenced by the Convertible Subordinated Notes, the Exchange
Notes and the Key Subordinated Loan Documents.
3.9. The Loan Agreement is amended by deleting SECTION 11.3 and
substituting the following in lieu thereof:
SECTION 11.3. Guaranties. Become or remain liable with respect to
any Guaranty of any obligation of any other Person, other than (a) any
Subsidiary Guaranty or Trust Guaranty under SECTION 9.12, (b) the VRDN
Guaranty, (c) a Guaranty by Xxxxxxxxx in an amount not to exceed $273,000
in favor of UniCapital Engine Group, Inc., (d) a Guaranty by Xxxxxxxxx in
favor of British Airways, Plc, as described in that certain letter
agreement among the Agent and the Lenders dated July 8, 1999, (e) any
Guaranty of Xxxxxxxxx'x obligations under the Key Subordinated Loan
Documents by any Subsidiary of Xxxxxxxxx that is also a Borrower
hereunder, provided that any such Guaranty is subject to the subordination
provisions set forth in the Key Subordinated Loan Documents, (f) any
Guaranty of Xxxxxxxxx'x obligations under the 8.5% Exchange Notes by any
Subsidiary of Xxxxxxxxx that is also a Borrower hereunder, provided that
any such Guaranty is subject to the subordination provisions set forth in
the Indenture applicable to such Exchange Notes, and (g) Guaranties by the
Borrowers in addition to the foregoing, so long as the maximum aggregate
contingent liabilities under such Guaranties do not exceed $1,000,000 at
any time.
3.10. The Loan Agreement is amended by deleting SECTION 11.5 thereof 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 in the
aggregate may make or incur Capital Expenditures (a) in the fiscal year
ending on December 31, 2000 in an amount not to exceed, in the aggregate,
$6,950,000, and (b) in any fiscal year thereafter in an amount not to
exceed, in the aggregate, $8,000,000 (exclusive of the purchase of the
AVSDC Leased Assets in accordance with SECTION 11.20).
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3.11. The Loan Agreement is amended by deleting SECTION 11.15 and
substituting the following in lieu thereof:
SECTION 11.15. Amendments of Other Agreements. Amend in any way (a)
the subordination provisions applicable to any Subordinated Indebtedness,
(b) the definition of "Change of Control" as defined in (i) the Indentures
relating to the Convertible Subordinated Notes, (ii) the Exchange Notes,
or (iii) the Key Subordinated Loan Documents, (c) the definition of
"Senior Debt" in the Key Subordinated Loan Documents, (d) the definition
of "Designated Senior Indebtedness" as defined in the Indentures relating
to the Convertible Subordinated Notes and the Exchange Notes, or (e) the
interest rate (or formula pursuant to which such interest rate is
determined) or principal amount or schedule of payments of principal and
interest with respect to any Indebtedness (other than the Secured
Obligations) other than to reduce the interest rate or extend the schedule
of payments with respect thereto.
3.12. The Loan Agreement is amended by deleting SECTION 11.16 and
substituting the following in lieu thereof:
SECTION 11.16. Minimum Availability. Permit Availability to be less
than (a) $10,000,000 at any time to and including Xxxxx 00, 0000, (x)
$11,000,000 at any time from May 1, 2001 to and including May 31, 2001,
(c) $12,000,000 at any time from June 1, 2001 to and including June 30,
2001, or (d) $13,000,000 at any time thereafter.
3.13. The Loan Agreement is amended by deleting SECTION 12.1(n) and
substituting the following in lieu thereof:
(n) Change in Control. At any time after the Agreement Date, (i) a
Person or "group" of Persons (within the meaning of Section 13(d) of the
Securities Exchange Act of 1934, as amended, and the rules promulgated
thereunder), shall acquire, beneficially or of record, 25% or more of the
outstanding voting stock (stock entitled to vote for election of directors
excluding rights subject to a contingency) of Xxxxxxxxx, or (ii) during
any period of two consecutive calendar years, individuals who at the
beginning of such period constituted the Board of Directors of any
Borrower (together with any new directors whose election by the Board of
Directors of such Borrower or whose nomination for election by the
shareholders of such Borrower, as the case may be, was approved by a vote
of a majority of the directors then still in office who either were
directors at the beginning of such period or whose election or nomination
for election was previously so approved) cease for any reason to
constitute a majority of the directors of such Borrower, as the case may
be, then in office, or (iii) a "Change in Control" as defined in the
Indentures relating to the Convertible Subordinated Notes
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or the Exchange Notes occurs, or (iv) a "Change of Control" as defined in
the Key Subordinated Loan Documents occurs.
4. Waiver. 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 Approving Lenders waive the defaults under
SECTIONS 11.1(a), (b), (c) and (d) of the Loan Agreement for the fiscal period
ended December 31, 2000 (collectively, the "Specified Defaults").
Notwithstanding the foregoing waiver, the Agent and the Approving Lenders
reserve all of their rights and remedies at all times with respect to any
Default or Event of Default, other than the Specified Defaults, whether
presently existing or occurring hereafter.
5. Conditions Precedent. The effectiveness of this Amendment and the
amendments, waivers and consents set forth herein are expressly contingent upon
the satisfaction of the following conditions precedent:
5.1. The Agent and the Approving Lenders shall have received a true and
correct copy of the Exchange Offer Offering Memorandum, as certified by the
Chief Financial Officer of Xxxxxxxxx.
5.2. The Agent and the Approving Lenders shall have received a true and
correct copy of the agreement and consent of Key Principal Partners, L.L.C.
("Key") whereby Key (a) consents to this Amendment and the amendments, waivers
and consents set forth herein (which agreement and consent shall acknowledge the
continuing effectiveness of the subordination provisions applicable to the Key
Subordinated Loan Documents), (b) consents to the consummation of the Exchange
Offer and the execution and delivery of the Exchange Notes, and (c) amends its
financial covenants in a manner satisfactory to the Agent and the Approving
Lenders.
5.3. The Agent, for the benefit of the Secured Parties, shall have
received an opinion of counsel to the Borrowers with respect to this Amendment
and all documents executed and/or delivered by the Borrowers in connection
herewith, in form and substance satisfactory to the Agent.
5.4. The Borrowers shall have paid to the Agent all fees due on the
effective date of this Amendment as set forth in the fee letter of even date
herewith between the Agent and Xxxxxxxxx, which fees shall be shared by the
Agent with the Lenders in accordance with the separate letter agreements between
the Agent and each Lender executing such a letter.
5.5. The Borrowers shall have delivered to the Agent, in each case in form
and substance satisfactory to the Agent, the following items with respect to the
AVS Investor Letters of Credit:
(a) amendments to each of the AVS Investor Letters of Credit, duly
executed and delivered by the issuer of each of the AVS Investor Letters
of Credit, deleting the
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requirement of the existence of an Event of Default from the draw
certificates and as a condition to drawing through and including April 30,
2001;
(b) a true and correct copy of an amendment to the AVS Investor
Letter of Credit Documents, (i) amending the draw conditions applicable to
the AVS Investor Letters of Credit to delete the requirement of the
existence of an Event of Default from the draw certificates and as a
condition to drawing through and including April 30, 2001, and (ii)
otherwise in form and substance acceptable to the Agent;
(c) a letter agreement from each of the AVS Letter of Credit
Investors (i) amending and restating the December 1, 2000 side letter
among the Agent and the AVS Investors with respect to certain matters
relating to the AVS Investor Letters of Credit, and (ii) acknowledging
that the AVS Investor Intercreditor Agreement remains in full force and
effect; and
(d) such other certificates, agreements and documents as the Agent
may deem necessary or appropriate to evidence and effect the amendments to
SECTION 9.13 set forth herein.
5.6. The Agent, for the benefit of the Secured Parties, shall have
received such officer's certificates and other agreements and documents as the
Agent may deem necessary or appropriate to evidence and effect the amendments
set forth herein, in each case in form and substance satisfactory to the Agent.
6. Conditions Subsequent. Notwithstanding the provisions of Sections 2 and
3 hereof, the continued effectiveness of the Agent's and the Approving Lenders'
consent to the Exchange Offer is expressly contingent upon:
6.1. The consummation of the Exchange Offer and the execution and delivery
of the Exchange Notes in accordance with the terms of the Exchange Offer
Offering Memorandum and all applicable laws, rules and regulations and pursuant
to definitive legal documents reasonably acceptable to the Agent.
6.2. The delivery on the date of the consummation of the Exchange Offer
and the execution and delivery of the Exchange Notes to the Agent, for the
benefit of the Secured Parties, of a certificate of the Chief Financial Officer
as to the satisfaction of condition subsequent 6.1 set forth above and such
other matters as the Agent may reasonably request.
6.3. The delivery on the date of the consummation of the Exchange Offer
and the execution and delivery of the Exchange Notes to the Agent, for the
benefit of the Secured Parties, of an opinion of counsel to the Borrowers with
respect to such matters relating to the consummation of the Exchange Offer and
the issuance of the Exchange Notes as the Agent may reasonably request,
including an opinion that the subordination provisions set forth in the Exchange
Notes are enforceable against the holders thereof (subject only to customary
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14
exceptions acceptable to the Agent), an opinion that, to counsel's knowledge,
the consummation of the Exchange Offer and the execution and delivery of the
Exchange Notes do not require any third party consents (except for those that
have been obtained) or violate the provisions of any material agreements, and an
opinion that the execution and delivery of the Exchange Notes do not violate any
applicable laws, rules or regulations (including securities laws, rules and
regulations).
7. Consultant. To induce the Agent and the Approving Lenders to enter into
this Amendment, the Borrowers hereby agree that (a) on or before April 30, 2001,
the Borrowers shall engage a consultant, which consultant shall be reasonably
acceptable to the Agent, to review the Borrowers' liquidity, expense and
leverage condition and projections and provide to the Borrowers, the Agent and
the Lenders a detailed report, action plan and implementation schedule with
respect to such liquidity, expense and leverage condition and projections (the
"Report"), which Report shall include recommendations from such consultant as to
how the Borrowers should reduce expenses and improve liquidity and leverage to
acceptable levels, and (b) as soon as available but in any event within 60 days
after the engagement of the above-described consultant, the Borrowers shall
deliver to the Agent (with sufficient copies for delivery to each Lender) the
Report.
8. 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.
9. 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.
10. Exchange Offer Approval Fees. The Agent and each Approving Lender
acknowledges and agrees that it shall not charge the Borrowers any additional
fees for any consent to any amendment or modification of the terms of the
Exchange Offer Offering Memorandum or the terms on which the Exchange Offer is
consummated, provided, that, the provisions of this Section shall in no way
limit or restrict the provisions of Section 9 of this Amendment.
11. No Event of Default; No Offset, Counterclaim. To induce the Agent and
the Approving 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; 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
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15
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.
12. No Other Agreement or Course of Dealing. To induce the Agent and the
Approving 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.
13. 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. 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.
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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:
-------------------------------------
17
Title:
-------------------------------------
AGENT:
BANK OF AMERICA, N.A., formerly,
NationsBank, N.A., as agent
By:
--------------------------------------
Xxxxxx X. Xxxxxx
Senior Vice President
APPROVING 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:
-------------------------------------
18
COMERICA BANK
By:
-------------------------------------
Name:
-------------------------------------
Title:
-------------------------------------
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:
-------------------------------------
19
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:
-------------------------------------
