Exhibit 10.6
Amendment and Consent Agreement No. 10 for
Lease Agreement and
Certain Other Operative Agreements
THIS AMENDMENT AND CONSENT AGREEMENT NO. 10 (this "Amendment Agreement") is
made and entered into as of the 24/th/ day of May, 2001, by and among AVIATION
SALES COMPANY, a Delaware corporation ("Aviation Sales"), as Construction Agent
(the "Construction Agent"); AVIATION SALES COMPANY, as Lessee (the "Lessee");
XXXXX FARGO BANK NORTHWEST, NATIONAL ASSOCIATION, a national banking
association, f/k/a First Security Bank, National Association, not individually,
except as expressly stated in the Operative Agreements, but solely as Owner
Trustee under the Aviation Sales Trust 1998-1 (the "Owner Trustee"); BANK OF
AMERICA, N.A., successor to NationsBank, National Association ("Bank of
America"), as a Holder and as a Lender; BANK OF AMERICA, N.A., successor to
NationsBank, National Association, as Administrative Agent (the "Agent"); each
of the holders party to the Trust Agreement (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:
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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 Lessee desires its Subsidiary, Caribe Aviation, Inc.
("Caribe"), to complete the Caribe Sale; and
WHEREAS, in connection with the Caribe Sale, the Lessee needs additional
time to satisfy the conditions precedent to the Caribe Sale; and
WHEREAS, the parties hereto desire to amend the Lease Agreement and certain
other Operative Agreements in the manner herein set forth;
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", "Lease" and "Lease
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Agreement" as used herein and in the Operative Agreements (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 the Participation Agreement and the Lease Agreement. The
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Participation Agreement and the Lease Agreement are hereby amended as follows:
(a) Appendix A to the Participation Agreement is amended by adding
the following definition, in the appropriate alphabetical order.
" `Amendment No. 10' shall mean Amendment and Consent Agreement
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No. 10 for Lease Agreement and certain other Operative Agreements dated
as of May 24, 2001, among the Construction Agent, the Lessee, the Owner
Trustee, the Agent, the Holders and Lenders party thereto and the
Guarantors party thereto."
(b) Section 5(b) of Amendment No. 9 is hereby amended to extend the
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date by which the conditions precedent to Sections 1, 2 or 3 of Amendment
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No. 9 (other than Section 3(c)) can be satisfied to June 1, 2001.
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(c) The references to "Xxxxxxxx Sundstrand Corporation" contained in
the sixth and seventh "WHEREAS" clauses, Section 2(c), Section 5(b)(xiii)
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and Section (5)(b)(xv) of Amendment No. 9 are hereby amended, in each case,
------------------
to delete the phrase "Xxxxxxxx Sundstrand Corporation" and to insert in its
place "Xxxxxxxx Sundstrand Service Corporation".
3. Consent. Subject to the Agent's receipt of the amendment referenced in
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Section 5(a)(ii) below, the Agent, the Owner Trustee, the Lenders and the
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Holders hereby consent to the amendment of the Existing Aviation Sales Credit
Agreement on the terms and conditions referenced on or attached hereto as
Exhibit A and made a part hereof.
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4. Representations, Warranties and Covenants. The Lessee and the
-----------------------------------------
Construction Agent hereby represent, warrant and covenant that:
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(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 Agreement are true on and as of the date hereof and the
Caribe Amendment Effective Date (as defined in Amendment No. 9); 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) The audited consolidated financial statements of each of the
Construction Agent and the Lessee as of December 31, 2000, 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. Neither Aviation Sales nor any
Guarantor or any Subsidiary of Aviation Sales has as of the date hereof (or
will have on the Caribe Amendment Effective Date) 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) 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;
(d) No event has occurred and no condition exists on the date hereof
(or will exist on the Caribe Amendment Effective Date) which, after giving
effect to this Amendment Agreement, constitutes or will constitute 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 December 31, 2000, no event has occurred (or will occur on or before
the Caribe Amendment Effective Date) 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.
(e) There is as of the date hereof (and there will be on the Caribe
Amendment Effective Date) no action, suit, proceeding, claim, investigation
or arbitration before or by any Governmental Authority or private
arbitrator pending or, to the knowledge of Aviation Sales, threatened
against Aviation Sales, any Guarantor or any Subsidiary of Aviation Sales
or any of their respective Assets (i) challenging the validity or the
enforceability of any of the Operative Agreements, (ii) which will, or is
reasonably likely to, result in any Material Adverse Effect, or (iii) under
the Racketeering Influenced and Corrupt Organizations Act or any similar
federal or state statute or law under any jurisdiction outside of the
United States where such Person is a defendant in a criminal indictment
that provides for the forfeiture of assets to any Governmental Authority as
a criminal penalty. There is as of the date hereof (and there will be on
the Caribe
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Amendment Effective Date) no material loss contingency within the meaning
of GAAP which has not been reflected in the Financial Statements of
Aviation Sales and its Subsidiaries. Neither Aviation Sales nor any
Guarantor or any Subsidiary of Aviation Sales is as of the date hereof (or
will be on the Caribe Amendment Effective Date) subject to or in default
with respect to any final judgment, writ, injunction, restraining order or
order of any nature, decree, rule or regulation of any court or
Governmental Authority which will, or is reasonably likely to, result in a
Material Adverse Effect.
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.
5. Conditions Precedent. The effectiveness of this Amendment Agreement,
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and any amendment, consent or waiver contained herein, 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 executed amendment of the Existing Aviation Sales Credit
Agreement, including the consent of Citicorp to this Amendment
Agreement in the form of Exhibit A attached hereto;
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(iii) evidence of the payment of all fees and amounts set forth
in Exhibit B attached hereto;
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(iv) any additional agreements, instruments or documents which
it may reasonably request in connection herewith;
Nothing contained in this Amendment Agreement shall be deemed to
amend, revise or waive any of the conditions to the effectiveness of
Amendment No. 9 (as set forth therein), or to imply that any such
conditions have been satisfied.
(b) The correctness in all material respects 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 material adverse change shall have occurred in the business,
assets, management, operations, financial condition or prospects of
Aviation Sales or any Guarantor or any Subsidiary of Aviation Sales since
December 31, 2000;
(d) Since December 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
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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;
(e) Lenders and Holders shall have reviewed all litigation pending or
threatened against Aviation Sales or any Guarantor or any Subsidiary of
Aviation Sales and determined to their satisfaction that no Material
Adverse Effect will, or is reasonably likely to, result from the existence
thereof; and
(f) None of the members of Aviation Sales' Board of Directors as of
December 31, 2000, shall have ceased acting as members of such Board of
Directors.
6. Release.
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(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
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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 6. Aviation Sales and its Subsidiaries hereby
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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 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 6.
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(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 6; (ii) such party has had advice of counsel of its own
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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 6.
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7. 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.
8. Full Force and Effect of Operative Agreements. Except as hereby
---------------------------------------------
specifically amended, modified or supplemented, the Participation Agreement, the
Lease 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.
9. Counterparts. This Amendment Agreement may be executed in one or more
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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.]
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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: /s/ Xxxxxxx X. Xxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxx
-----------------------------------
Title: Vice President
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AVIATION SALES COMPANY,
as Lessee
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
-----------------------------------
Title: Vice President
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XXXXX FARGO BANK NORTHWEST, NATIONAL
ASSOCIATION
not individually, except as expressly stated under
the Operative Agreements, but solely as Owner
Trustee under the Aviation Sales Trust 1998-1
By: /s/ Xxx X. Xxxxx
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Name: Xxx X. Xxxxx
-----------------------------------
Title: Vice President
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BANK OF AMERICA, N.A., as a Holder and as
a Lender
By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx
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Title: Senior Vice President
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BANK OF AMERICA, N.A., as Administrative
Agent
By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx
-----------------------------------
Title: Senior Vice President
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SIGNATURE PAGE 1 OF 3
JOINDER BY GUARANTORS
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The undersigned Guarantors hereby join in and consent to this Amendment
Agreement.
AVIATION SALES COMPANY
AVS/M-1, INC. (formerly AVIATION SALES
MANUFACTURING COMPANY)
AVIATION SALES PROPERTY
MANAGEMENT CORP.
AVIATION SALES FINANCE COMPANY
TIMCO ENGINE CENTER, INC.
AVS/M-2, INC (formerly AVS/XXXXX-XXXXX
MACHINE COMPANY
AVS/M-3, INC. (formerly APEX MANUFACTURING, INC.)
AEROCELL STRUCTURES, INC.
AVIATION SALES DISTRIBUTION
SERVICES COMPANY
AVIATION SALES LEASING COMPANY
WHITEHALL CORPORATION
TRIAD INTERNATIONAL MAINTENANCE
CORPORATION (successor in interest to Aero
Corporation and Aero Corp Macon, Inc.)
AVIATION SALES MAINTENANCE, REPAIR &
OVERHAUL COMPANY
CARIBE AVIATION, INC.
AIRCRAFT INTERIOR DESIGN, INC.
AERO HUSHKIT CORPORATION
HYDROSCIENCE, INC.
TIMCO ENGINEERED SYSTEMS, INC.
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
-----------------------------------
Title: Vice President of each of the foregoing
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Guarantors
AVSRE, L.P.
By: Aviation Sales Property Management Corp.,
its general partner
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxx
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Title: Vice President
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SIGNATURE PAGE 2 OF 3
AVIATION SALES SPS I, INC.
By:/s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
------------------------------------
Title: Vice President
-----------------------------------
SIGNATURE PAGE 3 OF 3
