Exhibit 10.118
AMENDED AND
RESTATED GUARANTY
This AMENDED AND RESTATED GUARANTY ("GUARANTY") is made as of March 31,
2004, by TMAS/ASI, INC. (formerly known as Aerocell Structures, Inc.), an
Arkansas corporation, TRIAD INTERNATIONAL MAINTENANCE CORPORATION, a Delaware
corporation, AIRCRAFT INTERIOR DESIGN, INC., a Florida corporation, TIMCO ENGINE
CENTER, INC., a Delaware corporation, AVIATION SALES PROPERTY MANAGEMENT CORP.,
a Delaware corporation, HYDROSCIENCE, INC., a Texas corporation, AVSRE, L.P., a
Delaware limited partnership, TIMCO ENGINEERED SYSTEMS, INC., a Delaware
corporation, AVS/M-1, INC., a Delaware corporation, AVS/M-2, INC., a Delaware
corporation, AVS/M-3, INC., an Arizona corporation, AVIATION SALES LEASING
COMPANY, a Delaware corporation, AVIATION SALES DISTRIBUTION SERVICES COMPANY, a
Delaware corporation, WHITEHALL CORPORATION, a Delaware corporation, AVS/CAI,
INC., a Florida corporation, and XXXXX MANUFACTURING COMPANY, INC., a California
corporation (each a "GUARANTOR" and, collectively, the "GUARANTORS"), in favor
of LJH, LTD., a Texas limited partnership (the "LENDER"). Unless otherwise
defined herein, capitalized terms used herein shall have the meanings ascribed
to them in the Term Note (as defined below).
WITNESSETH:
WHEREAS, TIMCO Aviation Services, Inc., a Delaware corporation
("BORROWER"), has executed and delivered to the Lender that certain Amended and
Restated Consolidated Term Promissory Note dated of even date herewith, in the
principal amount of $14,411,704.00, which amount may be increased pursuant to
the provisions thereof regarding compounding of interest (the "TERM NOTE"), and
incurred certain indebtedness thereunder; and
WHEREAS, each Guarantor acknowledges that it has and will continue to
benefit from the loans made to the Borrower by the Lender under the Term Note;
WHEREAS, as a condition to extending the loans evidenced by the Term
Note to the Borrower, the Lender has required that the Guarantors execute and
deliver this Guaranty for the benefit of the Lender on the terms and conditions
hereinafter set forth;
NOW, THEREFORE, in consideration of the premises set forth above, the
terms and conditions contained herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby agree as follows:
1. Guaranty.
(i) For value received and in consideration of any loan,
advance or financial accommodation of any kind whatsoever heretofore, now or
hereafter made, given or granted to the Borrower by the Lender under the Term
Note, the Guarantors, jointly and severally, unconditionally guarantee the full
and prompt payment when due, whether at maturity or earlier, by reason of
acceleration or otherwise, and at all times thereafter, of all of the
indebtedness evidenced by the Term Note, as the same may be increased from time
to time pursuant to the provisions regarding compounding of interest thereunder
(including, without limitation, interest accruing following the
filing of a bankruptcy petition by or against the Borrower, at the applicable
rate specified in the Term Note, whether or not such interest is allowed or
allowable as a claim in bankruptcy) (the "OBLIGATIONS").
(ii) At any time after the occurrence of an Event of
Default, the Guarantors, jointly and severally, agree to pay to the Lender, on
demand and in immediately available funds, the full amount of the Obligations
(including any portion thereof which is not yet due and payable). The
Guarantors, jointly and severally, further agree to pay to the Lender and
reimburse the Lender for, on demand and in immediately available funds, (a) all
losses (including, without limitation, lost profits), fees, costs and expenses
(including, without limitation, all court costs and attorneys' and paralegals'
fees, costs and expenses) paid or incurred by the Lender in: (1) endeavoring to
collect all or any part of the Obligations from, or in prosecuting any action
against, the Borrower or any Guarantor relating to the Term Note, this Guaranty,
any other agreements or documents executed and delivered in connection with the
Term Note or this Guaranty (collectively, the "Loan Documents"), or the
transactions contemplated thereby, (2) taking any action with respect to any
security or collateral securing the Obligations or any Guarantor's obligations
hereunder and under the other Loan Documents to which a Guarantor is a party;
and (3) preserving, protecting or defending the enforceability of, or enforcing,
this Guaranty or its respective rights hereunder (all such costs and expenses
are hereinafter referred to as the "EXPENSES") and (b) interest on (1) the
Obligations which do not constitute interest, (2) to the extent permitted by
applicable law, the Obligations which constitute interest, and (3) the Expenses,
from the date of demand under this Guaranty until paid in full at the per annum
rate of interest described as the default rate of interest in the Term Note (the
"INTEREST RATE"). Each Guarantor hereby agrees that this Guaranty is an absolute
guaranty of payment and is not a guaranty of collection.
2. Obligations Unconditional. Each Guarantor hereby agrees that
its obligations under this Guaranty shall be unconditional, irrespective of:
(i) the validity, enforceability, avoidance or
subordination of any of the Obligations or any of the Loan Documents;
(ii) the absence of any attempt by, or on behalf of, the
Lender to collect, or to take any other action to enforce, all or any part of
the Obligations whether from or against the Borrower, any other guarantor of the
Obligations or any other person;
(iii) the election of any remedy by, or on behalf of, the
Lender with respect to all or any part of the Obligations;
(iv) the waiver, consent, extension, forbearance or
granting of any indulgence by, or on behalf of, the Lender with respect to any
provision of any of the Loan Documents;
(v) the failure of the Lender or any person acting for
the benefit of the Lender to take any steps to perfect and maintain its security
interest in, or to preserve its rights to, any security or collateral for the
Obligations;
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(vi) the election by, or on behalf of, the Lender, in any
proceeding instituted under Chapter 11 of Title 11 of the United States Code (11
U.S.C. 101 et seq.) (the "BANKRUPTCY CODE"), of the application of Section
1111(b)(2) of the Bankruptcy Code;
(vii) any borrowing or grant of a security interest by the
Borrower, as debtor-in-possession, under Section 364 of the Bankruptcy Code;
(viii) the disallowance, under Section 502 of the Bankruptcy
Code, of all or any portion of the claims of the Lender for repayment of all or
any part of the Obligations or any Expenses; or
(ix) any other circumstance which might otherwise
constitute a legal or equitable discharge or defense of the Borrower or any
Guarantor.
3. Limitation of Obligation. Notwithstanding anything contained
in this Guaranty to the contrary, the obligations of each Guarantor hereunder
shall in no event exceed, at any time, the greater of (i) the aggregate amount
of proceeds theretofore received by or for the account of the Guarantor from the
proceeds of the loans, advances or other financial accommodations from time to
time made by the Lender to or for the account of the Borrower minus the
aggregate of all prior payments made by such Guarantor pursuant to this Guaranty
and (ii) ninety-five percent (95%) of the lowest amount sufficient to (1) render
such Guarantor "insolvent", as that term is defined in Section 101(31) of the
Bankruptcy Code, Section 4 of the Uniform Fraudulent Conveyance Act ("UFCA"),
Section 2 of the Uniform Fraudulent Transfer Act ("UFTX") or any other similar
fraudulent conveyance or transfer law or statute, (2) leave such Guarantor with
"unreasonably small capital", as that term is defined in Section 548(a)(2)(ii)
of the Bankruptcy Code or used in Section 5 of the UFCA or any other similar
fraudulent conveyance or transfer law or statute, (3) leave such Guarantor with
"unreasonably small" assets "in relation to the business or transaction" as
provided in Section 4(a)(2)(i) of the UFTA or (4) leave such Guarantor unable to
pay its debts as they mature within the meaning of Section 548(a)(2)(iii) of the
Bankruptcy Code, Section 6 of the UFCA, Section 4(a)(2)(ii) of the UFTA or any
other similar fraudulent conveyance or transfer law or statute.
4. Subordination; Ranking. The obligations evidenced by this
Guaranty shall be subordinate and inferior in right of payment to (i) the
Obligations evidenced by and as defined in the Financing Agreement dated of even
date herewith among Borrower, certain affiliates of Borrower, (the "CIT Credit
Agreement"); (ii) all obligations and liabilities evidenced by and as defined in
the Financing Agreement dated of even date herewith among Borrower, certain
affiliates of Borrower, and Hilco Capital, LP (the "Hilco Credit Agreement");
and (iii) all obligations and liabilities evidenced by that certain Lease
Agreement between the Borrower and Xxxxx Fargo Bank, National Association, f/k/a
First Security Bank, National Association, as Owner Trustee, and under all of
the operative documents related thereto to which any of the Guarantors are a
party. The obligations evidenced by this Guaranty, and the rights and remedies
of Lender are subject in all respects to that certain Intercreditor Agreement of
even date herewith between CIT, Hilco and Lender (the "CIT/Hilco Intercreditor
Agreement"), and the Lender shall not take any actions against the Guarantors or
any of their property in contravention of the terms of the CIT/Hilco
Intercreditor Agreement. The obligations evidenced by this Guaranty, and the
rights and remedies of the Lender, are subject in all respects to the TROL
Intercreditor Agreement (as defined in the Term Note), and
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shall not take any actions against Borrower or any of its property in
contravention of the terms of the TROL Intercreditor Agreement.
The obligations evidenced by this Guaranty shall be pari passu, and
otherwise equal in right of payment and on parity with, the indebtedness
evidenced by (i) that certain Indenture dated February 28, 2002, as may be
amended, among the Borrower, certain subsidiaries of the Borrower, and HSBC Bank
USA, as Trustee, and (ii) senior in right of payment to (x) the indebtedness
evidenced by that certain Indenture dated as of February 17, 1998, as amended,
among the Borrower, certain subsidiaries of the Borrower, and SunTrust Bank, as
Trustee and (y) the indebtedness evidenced by that certain Indenture dated as of
September 20, 2002, as amended, among the Borrower, certain subsidiaries of the
Borrower, and HSBC Bank USA, as Trustee.
5. Enforcement, Application of Payment. Upon the occurrence of an
Event of Default, the Lender may proceed directly and at once, without notice,
against the Guarantors to obtain performance of and to collect and recover the
full amount, or any portion, of the Obligations, without first proceeding
against the Borrower or any other person, or against any security or collateral
for the Obligations. Subject only to the terms and provisions of the Term Note,
the Lender shall have the exclusive right to determine the application of
payments and credits, if any, from the Guarantors, the Borrower or from any
other person on account of the Obligations or any other liability of the
Guarantors to the Lender.
6. Waivers.
(i) Each Guarantor hereby waives diligence, presentment,
demand of payment, filing of claims with a court in the event of receivership or
bankruptcy of the Borrower, protest or notice with respect to the Obligations,
all setoffs and counterclaims and all presentments, demands for performance,
notices of nonperformance, protests, notices of protest, notices of dishonor and
notices of acceptance of this Guaranty, the benefits of all statutes of
limitation, and all other demands whatsoever (and shall not require that the
same be made on the Borrower as a condition precedent to such Guarantor's
obligations hereunder), and covenants that this Guaranty will not be discharged,
except by complete payment (in cash) and performance of the Obligations and any
other obligations contained herein. Each Guarantor further waives all notices of
the existence, creation or incurrence of new or additional indebtedness, arising
either from additional loans extended to the Borrower or otherwise, and also
waives all notices that the principal amount, or any portion thereof, and/or any
interest on any instrument or document evidencing all or any part of the
Obligations is due, notices of any and all proceedings to collect from the
maker, any endorser or any other guarantor of all or any part of the
Obligations, or from any other person, and, to the extent permitted by law,
notices of exchange, sale, surrender or other handling of any security or
collateral given to or for the benefit of the Lender to secure payment of all or
any part of the Obligations.
(ii) Each Guarantor understands that if all or any part of
the Obligations is secured by real property, the Guarantors shall be liable for
the full amount of their liability under this Guaranty, notwithstanding
foreclosure of such real property by trustee sale or any other reason impairing
the right of the Guarantors or the Lender to proceed against the Borrower or the
Borrower's property. Each Guarantor hereby waives, to the fullest extent
permitted by law, all rights and benefits under Section 2809 of the California
Civil Code (or any similar law in any other jurisdiction) purporting to reduce a
guarantor's obligation in proportion to the principal obligation.
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Each Guarantor hereby waives, to the fullest extent permitted by law, all rights
and benefits under: (a) Section 580a of the California Code of Civil Procedure
(or any similar law in any other jurisdiction) purporting to limit the amount of
any deficiency judgment which might be recoverable following the occurrence of a
trustee's sale under a deed of trust, (b) Section 580b of the California Code of
Civil Procedure (or any similar law in any other jurisdiction) providing that no
deficiency may be recovered on a real property purchase money obligation, (c)
Section 580d of the California Code of Civil Procedure (or any similar law in
any other jurisdiction) providing that no deficiency may be recovered on a note
secured by a deed of trust on real property in case such real property is sold
under the power of sale contained in such deed of trust, and (d) Section 726 of
the California Code of Civil Procedure (or any similar law in any other
jurisdiction) providing that only one form of action may be maintained to
enforce a mortgage on real property or indebtedness secured by a mortgage on
real property, if such sections, or any of them, have any application hereto or
any application to the Guarantors. In addition, each Guarantor hereby waives, to
the fullest extent permitted by law, without limiting the generality of the
foregoing or any other provision hereof, all rights and benefits under
California Civil Code Sections 2810, 2819, 2839, 2845, 2849, 2850, 2899, and
3433 (or any similar law in any other jurisdiction). Each Guarantor waives all
rights and defenses arising out of an election of remedies by the Lender, even
though that election of remedies, such as a nonjudicial foreclosure with respect
to security for a guaranteed obligation, has destroyed such Guarantor's rights
of subrogation and reimbursement against the Borrower by the operation of
Section 580d of the California Code of Civil Procedure or otherwise.
(iii) The Lender, either itself or acting through any of
its agents or representatives, is hereby authorized, without notice or demand
and without affecting the liability of the Guarantors hereunder, from time to
time, (a) to renew, extend, accelerate or otherwise change the time for payment
of, or other terms relating to, all or any part of the Obligations, or to
otherwise modify, amend, change, restate or supplement the terms of any of the
Loan Documents; (b) to accept partial payments on all or any part of the
Obligations, (c) to take and hold security or collateral for the payment of all
or any part of the Obligations, this Guaranty, or any other guaranties of all or
any part of the Obligations or other liabilities of the Borrower, (d) to
exchange, enforce, waive and release any such security or collateral, (e) to
apply such security or collateral and direct the order or manner of sale thereof
as in their discretion they may determine; (f) to settle, release, exchange,
enforce, waive, compromise or collect or otherwise liquidate all or any part of
the Obligations, this Guaranty, any other guaranty of all or any part of the
Obligations, and any security or collateral for the Obligations or for any such
guaranty. Any of the foregoing may be done in any manner, without affecting or
impairing the obligations of any Guarantor hereunder.
7. Setoff. At any time after all or any part of the Obligations
have become due and payable (by acceleration or otherwise), the Lender may,
without notice to any Guarantor and regardless of the acceptance of any security
or collateral for the payment hereof, appropriate and apply toward the payment
of all or any part of the Obligations (i) any indebtedness due or to become due
from the Lender to any Guarantor, and (ii) any moneys, credits or other property
belonging to any Guarantor, at any time held by or coming into the possession of
the Lender or any of their respective affiliates.
8. Financial Information. Each Guarantor hereby assumes
responsibility for keeping itself informed of the financial condition of the
Borrower and any and all endorsers and/or other guarantors of all or any part of
the Obligations, and of all other circumstances bearing upon the risk
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of nonpayment of the Obligations, or any part thereof, that diligent inquiry
would reveal, and each Guarantor hereby agrees that the Lender shall have no
duty to advise the Guarantors or any of them of information known to the Lender
regarding such condition or any such circumstances. In the event the Lender, in
its sole discretion, undertakes at any time or from time to time to provide any
such information to any Guarantor, the Lender shall be under no obligation (i)
to undertake any investigation not a part of its regular business routine, (ii)
to disclose any information which the Lender, pursuant to accepted or reasonable
commercial finance or banking practices, wishes to maintain confidential or
(iii) to make any other or future disclosures of such information or any other
information to any Guarantor.
9. No Marshalling, Reinstatement. Each Guarantor consents and
agrees that neither the Lender nor any person acting for or on behalf of the
Lender shall be under any obligation to xxxxxxxx any assets in favor of any
Guarantor or against or in payment of any or all of the Obligations. Each
Guarantor further agrees that, to the extent that the Borrower, any Guarantor or
any other guarantor of all or any part of the Obligations makes a payment or
payments to the Lender, or the Lender receives any proceeds of any collateral
for the Obligations, which payment or payments or any part thereof are
subsequently invalidated, declared to be fraudulent or preferential, set aside
and/or required to be repaid to the Borrower, such Guarantor, such other
guarantor or any other person, or their respective estates, trustees, receivers
or any other party, including, without limitation, such Guarantor, under any
bankruptcy law, state or federal law, common law or equitable cause, then, to
the extent of such payment or repayment, the part of the Obligations which has
been paid, reduced or satisfied by such amount shall be reinstated and continued
in full force and effect as of the time immediately preceding such initial
payment, reduction or satisfaction.
10. Subrogation. Until the Obligations have been paid in full, in
cash, (i) no Guarantor shall have any right of subrogation with respect to such
Obligations and (ii) each Guarantor waives any right to enforce any remedy which
the Lender now has or may hereafter have against the Borrower, any endorser or
any guarantor of all or any part of the Obligations or any other person, and
each Guarantor waives any benefit of, and any right to participate in, any
security or collateral given to or for the benefit of the Lender to secure the
payment or performance of all or any part of the Obligations.
11. Enforcement, Amendments, Waivers. No delay on the part of any
of the Lender in the exercise of any right or remedy arising under this
Guaranty, the Term Note, any of the other Loan Documents or otherwise with
respect to all or any part of the Obligations or any other guaranty of or
security for all or any part of the Obligations shall operate as a waiver
thereof, and no single or partial exercise by any such person of any such right
or remedy shall preclude any further exercise thereof. No modification or waiver
of any of the provisions of this Guaranty shall be binding upon the Lender,
except as expressly set forth in a writing duly signed and delivered by the
party making such modification or waiver. Failure by the Lender at any time or
times hereafter to require strict performance by the Borrower, any Guarantor,
any other guarantor of all or any part of the Obligations or any other person of
any of the provisions, warranties, terms and conditions contained in any of the
Loan Documents now or at any time or times hereafter executed by such persons
and delivered to the Lender shall not waive, affect or diminish any right of the
Lender at any time or times hereafter to demand strict performance thereof and
such right shall not be deemed to have been waived by any act or knowledge of
the Lender, or its agents, officers or employees, unless such waiver is
contained in an instrument in writing, directed and delivered to such Borrower
or such
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Guarantor, as applicable, specifying such waiver, and is signed by the party or
parties necessary to give such waiver under the Term Note. No waiver of any
Event of Default by the Lender shall operate as a waiver of any other Event of
Default or the same Event of Default on a future occasion, and no action by the
Lender permitted hereunder shall in any way affect or impair the Lender's rights
and remedies or the obligations of any Guarantor under this Guaranty. Any
determination by a court of competent jurisdiction of the amount of any
principal and/or interest owing by the Borrower to the Lender shall be
conclusive and binding on the Guarantors irrespective of whether any Guarantor
was a party to the suit or action in which such determination was made.
12. Effectiveness, Termination. This Guaranty shall become
effective upon its execution by the Guarantors. This Guaranty shall continue in
full force and effect and may not be terminated or otherwise revoked until the
Obligations shall have been fully paid (in cash) and discharged and the Term
Note cancelled. If, notwithstanding the foregoing, any Guarantor shall have any
right under applicable law to terminate or revoke this Guaranty, such Guarantor
agrees that such termination or revocation shall not be effective until a
written notice of such revocation or termination, specifically referring hereto,
signed by such Guarantor, is actually received by the Lender. Such notice shall
not affect the obligations of any other guarantor or any right or power of the
Lender to enforce rights against such Guarantor arising prior to receipt thereof
by the Lender. If the Lender grants loans or takes other action after any
Guarantor terminates or revokes this Guaranty as aforesaid, but before the
Lender receives such written notice, the rights of the Lender with respect
thereto shall be the same as if such termination or revocation had not occurred.
13. Successors and Assigns. This Guaranty shall be binding upon
each Guarantor and upon the successors and assigns of each Guarantor and shall
inure to the benefit of the Lender and its successors and assigns; all
references herein to the Borrower and any Guarantor shall be deemed to include
their respective successors and assigns. The successors and assigns of any
Guarantor and the Borrower shall include, without limitation, their respective
receivers, trustees and debtors-in-possession. All references to the singular
shall be deemed to include the plural where the context so requires.
14. Officer Authority. The undersigned hereby certifies that he
has all necessary authority to grant and execute this Guaranty on behalf of the
respective Guarantors.
15. Governing Law. THIS GUARANTY SHALL BE INTERPRETED, AND THE
RIGHTS AND LIABILITIES OF THE PARTIES HERETO DETERMINED, IN ACCORDANCE WITH THE
LAWS OF THE STATE OF TEXAS.
16. Personal Jurisdiction.
(i) EACH OF THE PARTIES HERETO IRREVOCABLY AND
UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE
JURISDICTION OF ANY TEXAS STATE COURT OR FEDERAL COURT SITTING IN TEXAS AND ANY
COURT HAVING JURISDICTION OVER APPEALS OF MATTERS HEARD IN SUCH COURTS, IN ANY
ACTION OR PROCEEDING ARISING OUT OF, CONNECTED WITH, RELATED TO OR INCIDENTAL TO
THE RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH THIS GUARANTY OR ANY
OTHER LOAN DOCUMENT, WHETHER ARISING IN CONTRACT, TORT, EQUITY OR
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OTHERWISE, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE
PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT
OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH STATE COURT
OR, TO THE EXTENT PERMITTED BY LAW, IN SUCH FEDERAL COURT. EACH OF THE PARTIES
HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE
CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR
IN ANY OTHER MANNER PROVIDED BY LAW. EACH GUARANTOR WAIVES IN ALL DISPUTES ANY
OBJECTION THAT IT MAY HAVE TO THE LOCATION OF THE COURT CONSIDERING THE DISPUTE.
(ii) EACH GUARANTOR AGREES THAT THE LENDER SHALL HAVE THE
RIGHT TO PROCEED AGAINST SUCH GUARANTOR OR ITS PROPERTY IN A COURT IN ANY
LOCATION TO ENABLE THE AGENT TO REALIZE ON THE COLLATERAL OR ANY OTHER SECURITY
FOR THE OBLIGATIONS, OR TO ENFORCE A JUDGMENT OR OTHER COURT ORDER ENTERED IN
FAVOR OF THE LENDER. EACH GUARANTOR AGREES THAT IT WILL NOT ASSERT ANY
PERMISSIVE COUNTERCLAIMS IN ANY PROCEEDING BROUGHT BY THE LENDER TO REALIZE ON
THE COLLATERAL OR ANY OTHER SECURITY FOR THE OBLIGATIONS OR TO ENFORCE A
JUDGMENT OR OTHER COURT ORDER IN FAVOR OF THE LENDER. EACH GUARANTOR WAIVES ANY
OBJECTION THAT IT MAY HAVE TO THE LOCATION OF THE COURT IN WHICH THE LENDER MAY
COMMENCE A PROCEEDING DESCRIBED IN THIS SECTION.
17. Service of Process. EACH GUARANTOR IRREVOCABLY CONSENTS TO THE
SERVICE OF PROCESS OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR
PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL,
POSTAGE PREPAID, TO THE GUARANTORS' NOTICE ADDRESS SPECIFIED BELOW, SUCH SERVICE
TO BECOME EFFECTIVE UPON RECEIPT. EACH GUARANTOR IRREVOCABLY WAIVES ANY
OBJECTION (INCLUDING, WITHOUT LIMITATION, ANY OBJECTION TO THE LAYING OF VENUE
OR BASED UPON THE GROUNDS OF FORUM NON CONVENIENS) WHICH IT MAY NOW OR HEREAFTER
HAVE TO THE BRINGING OF ANY SUCH ACTION OR PROCEEDING WITH RESPECT TO THIS
GUARANTY OR ANY OTHER LOAN DOCUMENT IN ANY JURISDICTION SET FORTH ABOVE. NOTHING
HEREIN SHALL AFFECT THE RIGHT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY
LAW OR SHALL LIMIT THE RIGHT OF THE LENDER TO BRING PROCEEDINGS AGAINST THE
GUARANTOR IN THE COURTS OF ANY OTHER JURISDICTION.
18. Waiver of Jury Trial. EACH OF THE PARTIES HERETO IRREVOCABLY
WAIVES TRIAL BY JURY IN ANY ACTION OR PROCEEDING WITH RESPECT TO THIS GUARANTY
OR ANY OTHER LOAN DOCUMENT. ANY OF THE PARTIES HERETO MAY FILE AN ORIGINAL
COUNTERPART OR A COPY OF THIS GUARANTY WITH ANY COURT AS WRITTEN EVIDENCE OF THE
CONSENT OF THE PARTIES HERETO TO THE WAIVER OF SUCH PARTY'S RIGHT TO TRIAL BY
JURY.
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19. Advice of Counsel. Each Guarantor confirms that it has
obtained its own counsel with respect to the terms of this Guaranty and
represents and warrants to the Lender that it has discussed this Guaranty with
its counsel.
20. Waiver of Bond. Each Guarantor waives the posting of any bond
otherwise required of the Lender in connection with any judicial process or
proceeding to realize on any collateral or other security for the Obligations,
to enforce any judgment or other court order entered in favor of the Lender, or
to enforce by specific performance, temporary restraining order, or preliminary
or permanent injunction, this Guaranty or any other agreement or document
between the Lender and any Guarantor.
21. Notices. Any notice or other communication herein required or
permitted to be given shall be in writing and may be personally served, sent by
facsimile transmission or courier service or United States certified mail and
shall be deemed to have been given when delivered in person or by courier
service, upon transmission thereof in the case of a facsimile transmission, or
four (4) business days after deposit in the United States mail with postage
prepaid and properly addressed. Notices to the Lender shall not be effective
until received by the Lender. For purposes hereof, the addresses of the parties
hereto shall be as set forth below, or at such other address as may be
designated by such party in a written notice to the Lender.
if to any Guarantor, at:
c/o TIMCO Aviation Services, Inc.
000 Xxxxx Xxxx
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Chief Financial Officer
Telecopy: (000) 000-0000
with a copy to:
Akerman Senterfitt
Xxx X.X. 0xx Xxxxxx
00xx Xxxxx
Xxxxx, Xxxxxxx 00000-0000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
Telecopy: (000) 000-0000
if to the Lender, at:
LJH, Ltd.
000 Xxxx Xxxx
Xxxxxxx, Xxxxx 00000
Attention: Xx. Xxxx Xxxxxx
Telecopy: 000-000-0000
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with a copy to:
__________________________________
__________________________________
__________________________________
Attention: _______________________
Telecopy: ________________________
22. Severability. Wherever possible, each provision of this
Guaranty shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Guaranty shall be prohibited by or
invalid under such law, such provision shall be ineffective to the extent of
such prohibition or invalidity without invalidating the remainder of such
provision or the remaining provisions of this Guaranty.
23. Subordination. Each Guarantor agrees that any and all claims
of such Guarantor against the Borrower, any endorser or any other guarantor of
all or any part of the Obligations, or against any of their respective
properties, shall be subordinate and subject in right of payment to the prior
payment, in full and in cash, of all Obligations (including, without limitation,
interest accruing following the filing of a bankruptcy petition by or against
the Borrower, at the Interest Rate, whether or not such interest is allowed as a
claim in bankruptcy). Notwithstanding any right of any Guarantor to ask, demand,
xxx for, take or receive any payment from the Borrower, all rights, liens and
security interests of such Guarantor, whether now or hereafter arising and
howsoever existing, in any assets of the Borrower (whether constituting part of
the collateral or other security given to secure payment of all or any part of
the Obligations or otherwise) shall be and hereby are subordinated to the rights
of the Lender in those assets. No Guarantor shall have any right to possession
of any such asset or to foreclose upon any such asset, whether by judicial
action or otherwise, unless and until all of the Obligations shall have been
fully paid and satisfied and all financing arrangements between the Borrower and
the Lender have been terminated. If all or any part of the assets of the
Borrower, or the proceeds thereof, are subject to any distribution, division or
application to the creditors of the Borrower, whether partial or complete,
voluntary or involuntary, and whether by reason of liquidation, bankruptcy,
arrangement, receivership, assignment for the benefit of creditors or any other
action or proceeding, or if the business of the Borrower is dissolved or if
substantially all of the assets of the Borrower are sold, then, and in any such
event, any payment or distribution of any kind or character, either in cash,
securities or other property, which shall be payable or deliverable upon or with
respect to any indebtedness of the Borrower to any Guarantor ("BORROWER
INDEBTEDNESS") shall be paid or delivered directly to the Lender for application
on any of the Obligations, due or to become due, until the Obligations shall
have first been fully paid and satisfied in cash. Each Guarantor irrevocably
authorizes and empowers the Lender to demand, xxx for, collect and receive every
such payment or distribution and give acquittance therefor and to make and
present for and on behalf of such Guarantor such proofs of claim and take such
other action, in the Lender's own name or in the name of such Guarantor or
otherwise, as the Lender may deem necessary or advisable for the enforcement of
this Guaranty. The Lender may vote such proofs of claim in any such proceeding,
receive and collect any and all dividends or other payments or disbursements
made thereon in whatever form the same may be paid or issued and apply the same
on account of any of the Obligations. Should any payment, distribution, security
or instrument or proceeds thereof be received by any Guarantor upon or with
respect to the Borrower Indebtedness prior to the satisfaction of all of the
Obligations and the termination of all financing arrangements between the
Borrower and
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the Lender, such Guarantor shall receive and hold the same in trust, as trustee,
for the benefit of the Lender and shall forthwith deliver the same to the
Lender, in precisely the form received (except for the endorsement or assignment
of such Guarantor where necessary), for application to the Obligations, due or
not due, and, until so delivered, the same shall be held in trust by such
Guarantor as the property of the Lender. If any Guarantor fails to make any such
endorsement or assignment to the Lender, the Lender or any of its officers or
employees are hereby irrevocably authorized to make the same. Each Guarantor
agrees that until the Obligations have been paid in full (in cash) and satisfied
and all financing arrangements between the Borrower and the Lender have been
terminated, no Guarantor will assign or transfer to any person any claim such
Guarantor has or may have against the Borrower.
24. Counterparts. This Guaranty may be executed in any number of
counterparts, each of which when so executed and delivered shall be deemed an
original, but all such counterparts together shall constitute one and the same
agreement.
25. NO ORAL AGREEMENTS. THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HERETO SHALL BE DETERMINED SOLELY FROM WRITTEN AGREEMENTS, DOCUMENTS, AND
INSTRUMENTS, AND ANY PRIOR ORAL AGREEMENTS BETWEEN THE PARTIES ARE SUPERSEDED BY
AND MERGED INTO SUCH WRITINGS. THIS GUARANTY (AS AMENDED IN WRITING FROM TIME TO
TIME) AND THE OTHER WRITTEN LOAN DOCUMENTS EXECUTED BY THE BORROWER, THE LENDER
OR THE GUARANTORS (OR BY THE BORROWER OR THE GUARANTORS FOR THE BENEFIT OF THE
LENDER) REPRESENT THE FINAL AGREEMENT BETWEEN THE BORROWER, THE GUARANTORS, AND
THE LENDER AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR
SUBSEQUENT ORAL AGREEMENTS BY THE PARTIES. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS BETWEEN THE PARTIES.
26. ARBITRATION. ANY CONTROVERSY OR CLAIM BETWEEN THE GUARANTORS
AND THE LENDER INCLUDING BUT NOT LIMITED TO THOSE ARISING OUT OF OR RELATING TO
THIS GUARANTY OR ANY OTHER LOAN DOCUMENT, INCLUDING ANY CLAIM BASED ON OR
ARISING FROM AN ALLEGED TORT, SHALL BE DETERMINED BY BINDING ARBITRATION IN
ACCORDANCE WITH THE FEDERAL ARBITRATION ACT (OR IF NOT APPLICABLE, THE
APPLICABLE STATE LAW). THE RULES OF PRACTICE AND PROCEDURE FOR THE ARBITRATION
OF COMMERCIAL DISPUTES OF JUDICIAL ARBITRATION AND MEDIATION SERVICES, INC.
(J.A.M.S.), AND THE "SPECIAL RULES" SET FORTH BELOW. IN THE EVENT OF ANY
INCONSISTENCY, THE SPECIAL RULES SHALL CONTROL. JUDGMENT UPON ANY ARBITRATION
AWARD MAY BE ENTERED IN ANY COURT HAVING JURISDICTION. THE GUARANTORS OR THE
LENDER MAY BRING AN ACTION, INCLUDING A SUMMARY OR EXPEDITED PROCEEDING, TO
COMPEL ARBITRATION OF ANY CONTROVERSY OR CLAIM TO WHICH THIS GUARANTY APPLIES IN
ANY COURT HAVING JURISDICTION OVER SUCH ACTION.
(i) SPECIAL RULES. THE ARBITRATION SHALL BE CONDUCTED IN
THE CITY OF THE BORROWER'S DOMICILE AT THE TIME OF THE EXECUTION OF THIS
GUARANTY AND ADMINISTERED BY J.A.M.S. WHO WILL APPOINT AN
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ARBITRATOR; IF J.A.M.S. IS UNABLE OR LEGALLY PRECLUDED FROM ADMINISTERING THE
ARBITRATION, THEN THE AMERICAN ARBITRATION ASSOCIATION WILL SERVE. ALL
ARBITRATION HEARINGS WILL BE COMMENCED WITHIN 90 DAYS OF THE DEMAND FOR
ARBITRATION; FURTHER, THE ARBITRATOR SHALL ONLY, UPON A SHOWING OF CAUSE, BE
PERMITTED TO EXTEND THE COMMENCEMENT OF SUCH HEARING FOR UP TO AN ADDITIONAL 60
DAYS.
(ii) RESERVATION OF RIGHTS. NOTHING IN THIS SECTION 26
SHALL BE DEEMED TO (I) LIMIT THE APPLICABILITY OF ANY OTHERWISE APPLICABLE
STATUTES OF LIMITATION OR REPOSE AND ANY WAIVERS CONTAINED IN THIS GUARANTY; OR
(II) BE A WAIVER BY THE LENDER OF THE PROTECTION AFFORDED TO IT BY 12 U.S.C.
SEC. 91 OR ANY SUBSTANTIALLY EQUIVALENT STATE LAW; OR (III) LIMIT THE RIGHT OF
THE LENDER (A) TO EXERCISE SELF HELP REMEDIES SUCH AS (BUT NOT LIMITED TO)
SETOFF, OR (B) TO FORECLOSE AGAINST ANY REAL OR PERSONAL PROPERTY COLLATERAL; OR
(C) TO OBTAIN FROM A COURT PROVISIONAL OR ANCILLARY REMEDIES SUCH AS (BUT NOT
LIMITED TO) INJUNCTIVE RELIEF, WRIT OF POSSESSION OR THE APPOINTMENT OF A
RECEIVER. THE LENDER MAY EXERCISE SUCH SELF-HELP RIGHTS, FORECLOSE UPON SUCH
PROPERTY, OR OBTAIN SUCH PROVISIONAL OR ANCILLARY REMEDIES BEFORE, DURING OR
AFTER THE PENDENCY OF ANY ARBITRATION PROCEEDING BROUGHT PURSUANT TO THIS
GUARANTY. NEITHER THE EXERCISE OF SELF HELP REMEDIES, NOR THE INSTITUTION OR
MAINTENANCE OF AN ACTION FOR FORECLOSURE OR PROVISIONAL OR ANCILLARY REMEDIES,
SHALL CONSTITUTE A WAIVER OF THE RIGHT OF ANY PARTY, INCLUDING THE CLAIMANT IN
ANY SUCH ACTION, TO ARBITRATE THE MERITS OF THE CONTROVERSY OR CLAIM OCCASIONING
RESORT TO SUCH REMEDIES.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, this Guaranty has been duly executed by each
Guarantor as of the day and year first set forth above.
TMAS/ASI, INC.
By: /s/
----------------------------------
Xxxxx Xxxxxx, Treasurer
TRIAD INTERNATIONAL MAINTENANCE
CORPORATION
By: /s/
----------------------------------
Xxxxx Xxxxxx, Treasurer
AIRCRAFT INTERIOR DESIGN, INC.
By: /s/
----------------------------------
Xxxxx Xxxxxx, Treasurer
TIMCO ENGINE CENTER, INC.
By: /s/
----------------------------------
Xxxxx Xxxxxx, Treasurer
AVIATION SALES PROPERTY MANAGEMENT
CORP.
By: /s/
----------------------------------
Xxxxx Xxxxxx, Treasurer
HYDROSCIENCE, INC.
By: /s/
----------------------------------
Xxxxx Xxxxxx, Treasurer
Signature Page 1 of 3 Subsidiary Guaranty
AVSRE, L.P.
By: AVIATION SALES PROPERTY
MANAGEMENT CORP., as general
partner
By: /s/
----------------------------------
Xxxxx Xxxxxx, Treasurer
TIMCO ENGINEERED SYSTEMS, INC.
By: /s/
----------------------------------
Xxxxx Xxxxxx, Treasurer
AVS/M-1, INC.
By: /s/
----------------------------------
Xxxxx Xxxxxx, Treasurer
AVS/M-2, INC.
By: /s/
----------------------------------
Xxxxx Xxxxxx, Treasurer
AVS/M-3, INC.
By: /s/
----------------------------------
Xxxxx Xxxxxx, Treasurer
AVIATION SALES LEASING COMPANY
By: /s/
----------------------------------
Xxxxx Xxxxxx, Treasurer
Signature Page 2 of 3 Subsidiary Guaranty
AVIATION SALES DISTRIBUTION SERVICES
COMPANY
By: /s/
----------------------------------
Xxxxx Xxxxxx, Treasurer
WHITEHALL CORPORATION
By: /s/
----------------------------------
Xxxxx Xxxxxx, Treasurer
AVS/CAI, INC.
By: /s/
----------------------------------
Xxxxx Xxxxxx, Treasurer
XXXXX MANUFACTURING COMPANY, INC.
By: /s/
----------------------------------
Xxxxx Xxxxxx, Treasurer
Signature Page 3 of 3 Subsidiary Guaranty
