Exhibit 4.27
FIFTH AMENDMENT TO LOAN AND SECURITY AGREEMENT
AND FORBEARANCE AGREEMENT
THIS FIFTH AMENDMENT TO LOAN AND SECURITY AGREEMENT AND FORBEARANCE
AGREEMENT (this "Agreement"), dated as of December 5, 2003, is entered into by
and among XXXXX FARGO FOOTHILL, INC., a California corporation, as agent (in
such capacity, "Agent") for the Lenders (defined below), the Lenders signatory
hereto, MERCURY AIR GROUP, INC. ("Parent") and Parent's Subsidiaries signatory
hereto (together with Parent, "Borrowers" and each sometimes referred to as a
"Borrower").
RECITALS
A. Borrowers, Agent and the financial institutions from time to time
party thereto (the "Lenders") have previously entered into that certain Loan
and Security Agreement, dated as of December 30, 2002, as amended by that
certain First Amendment to Loan and Security Agreement, dated as of March 12,
2003, that certain Second Amendment to Loan and Security Agreement, dated as of
March 31, 2003, that certain Third Amendment to Loan and Security Agreement,
dated as of July 16, 2003 and that certain Fourth Amendment to Loan and
Security Agreement, dated as of August 1, 2003 (as amended, modified or
supplemented as of the date hereof, the "Loan Agreement"), pursuant to which
the Lenders have made certain loans and financial accommodations available to
the Borrowers. Capitalized terms used herein without definition shall have the
meanings ascribed thereto in the Loan Agreement as amended hereby.
B. The following Events of Default have occurred and are continuing
under the Loan Agreement: (i) Borrowers' failure to deliver to Agent its annual
audited financial statements for its fiscal year 2003 (the "2003 Financial
Statements") as required by Section 6.3(c) of the Loan Agreement; (ii) the
formation of a subsidiary of MAC, Mercury Air Center - Long Beach, Inc., in
violation of Section 7.12(c) of the Loan Agreement and the transfer to such
subsidiary of assets of MAC in violation of Section 7.3(c) of the Loan
Agreement and (iii) the failure of the Borrowers to deliver to Whitney the
supplemented schedules as required by Section 8.1(k) of the Whitney Agreement,
which constitutes an Event of Default under the Whitney Documentation, and
therefore constitutes an Event of Default pursuant to Section 8.9 of the Loan
Agreement (collectively, the "Known Existing Defaults").
C. Borrowers have asked Agent and the Lenders to forbear from exercising
their rights and remedies under the Loan Agreement in order to give Borrowers
time to consummate an Acquisition (as defined in that certain Consent, dated
the date hereof, issued by Agent and the Required Lender to Parent (the
"Consent")).
D. Borrowers have asked Agent and the Lenders to amend the Loan
Agreement to permit certain indebtedness of the Borrowers to be incurred.
E. Agent and the Lenders are willing, for a limited period of time and
on the terms and conditions set forth herein, to forbear from exercising their
rights and remedies under the Loan Agreement with respect to the Known Existing
Defaults and to amend the Loan Agreement on the terms and conditions set forth
herein.
F. Borrowers are entering into this Agreement with the understanding and
agreement that, except as specifically provided herein, none of Agent's or any
Lender's rights or remedies as set forth in the Loan Agreement or any other Loan
Document is being waived or modified by the terms of this Agreement, including,
without limitation, the right to receive all Net Cash Proceeds for application
to the Obligations until paid in full pursuant to the terms of Section
2.4(c)(ii)(B) of the Loan Agreement due to the existence of the Known Existing
Defaults.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
herein contained, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereby agree as
follows:
1. Incorporation of Recitals. Each of the above recitals is expressly
incorporated herein and is represented by Borrowers to be true and correct.
2. Reaffirmation of Obligations. Each Borrower hereby acknowledges that
the Loan Documents and the Obligations constitute the valid and binding
obligations of such Borrower enforceable against such Borrower in accordance
with their respective terms, and such Borrower hereby reaffirms its obligations
under the Loan Documents. Agent and each Lender's entry into this Agreement or
any of the documents referenced herein, their negotiations with any party with
respect to any Loan Document, their conduct of any analysis or investigation of
any collateral for the Obligations or any Loan Document, their acceptance of any
payment from any Borrower or any other party of any payments made to them prior
to the date hereof, or any other action or failure to act on the part of any of
them shall not constitute (a) except as expressly set forth in Section 7 hereof,
a modification of any Loan Document, or (b) a waiver of any Default or Event of
Default under the Loan Documents, including, without limitation, the Known
Existing Defaults, or a waiver of any term or provision of any Loan Document.
3. No Limitation. Agent and the Lenders have been unable to fully
ascertain the extent of all Events of Default under the Loan Agreement, as such
the description of the Known Events of Default set forth in Recital B hereto is
not an exhaustive list of Events of Default and the failure to include any other
Events of Default shall not serve as or be deemed a waiver of such Events of
Default.
4. Agreement to Forbear.
For the Forbearance Term (as defined below), neither Agent nor any Lender
shall take any action or commence any proceedings with respect to the
enforcement of any of its rights or remedies under the Loan Documents as a
result of the Known Existing Defaults; provided, however, Agent and the Lenders
reserve the right to implement the default rate of interest with respect to the
Obligations as provided for in Section 2.6(c) of the Loan Agreement. The parties
agree that neither the foregoing agreement by Agent and the Lenders nor the
acceptance by Agent or the Lenders of any of the payments provided for in the
Loan Documents, nor any payment prior to the date hereof shall, however, (a)
excuse any party from any of its obligations under the Loan Documents, or (b)
toll the running of any time periods applicable to any such rights and remedies,
including, without limitation, any time periods within which Borrowers may
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cure defaults under the Loan Documents or otherwise. Each Borrower agrees that
it will not assert laches, waiver or any other defense to the enforcement of
any of the Loan Documents based upon the foregoing agreement by Agent and the
Lenders to forbear or the acceptance by Agent or the Lenders of any of the
payments provided for in the Loan Documents or any payment prior to the date
hereof.
As used herein, "Forbearance Term" shall mean the period commencing upon
the effectiveness of this Agreement and continuing until the earliest of: (i)
the occurrence of any Default or Event of Default under any of the Loan
Documents other than the Known Existing Defaults or any breach of any of the
provisions of this Agreement or the Consent; (ii) the failure of the
Borrowers to deliver to Agent the 2003 Financial Statements on or before
December 31, 2003; (iii) the failure of Parent to deliver to Agent, on or
before January 31, 2004, evidence, in form and substance satisfactory to Agent
that the applicable Borrowers have properly submitted all required requests for
consent from the applicable Governmental Authorities with respect to the sale
of the transfer of the FBOs contemplated by an Acquisition; (iv) in the event
the Stock Purchase Agreement (as defined in the Consent) is terminated by
either party thereto in accordance with the terms thereof, the date that is
thirty (30) days after the date of such termination unless a replacement
Acquisition Agreement (as defined in the Consent), on terms reasonably
satisfactory to Agent and the Lenders (including conformity with the provisions
of the Consent) is entered into by Parent on or before the date that is thirty
(30) days after the date of such termination; (v) the reasonable determination
by Agent that an Acquisition cannot be consummated in compliance with the
terms set forth in the Consent on or before March 31, 2004; or (vi) March 31,
2004.
5. Termination of Agreement to Forbear. Each borrower acknowledges and
agrees that upon the termination of Agent and Lenders' agreement to forbear as
provided in Section 4 hereof, Agent and the Lenders shall be entitled to
exercise any or all of their remedies under the Loan Documents or any
applicable law, including, without limitation, seeking (to the extent permitted
by applicable law) the appointment of a receiver, the acceleration of the
Obligations and the enforcement under the Code of any Liens in favor of the
Agent or any Lender as a result of the Known Existing Defaults, and at any time
Agent and the Lenders shall be entitled to exercise any or all of their
remedies under the Loan Documents as a result of any other Default or Event of
Default under the Loan Documents.
6. Release; Covenant Not to Xxx.
(a) Each Borrower hereby absolutely and unconditionally releases and
forever discharges Agent and each Lender, and any and all participants, parent
corporations, subsidiary corporations, affiliated corporations, insurers,
indemnitors, successors and assigns thereof, together with all of the present
and former directors, officers, agents and employees of any of the foregoing
(each a "Released Party"), from any and all claims, demands or causes of action
of any kind, nature or description, whether arising in law or equity or upon
contract or tort or under any state or federal law or otherwise, which such
Borrower has had, now has or has made claim to have against any such person for
or by reason of any act, omission, matter, cause or thing whatsoever arising
from the beginning of time to and including the date of this Agreement, whether
such claims, demands and causes of action are matured or unmatured or known or
unknown. It is the intention of each Borrower in providing this release that
the same shall be effective as a bar to each and every claim, demand and cause
of action specified, and in
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furtherance of this intention it waives and relinquishes, to the extent
permitted by applicable law, all rights and benefits under any provision of any
applicable law that may provide that a general release does not extend to claims
which the person giving the release does not know or suspect to exist in its
favor at the time of executing the release, which if known by it might have
materially affected its settlement with the recipient of the release. Each
Borrower acknowledges that it may hereafter discover facts different from or in
addition to those now known or believed to be true with respect to such claims,
demands, or causes of action and agree that this instrument shall be and remain
effective in all respects notwithstanding any such differences or additional
facts. Each Borrower understands, acknowledges and agrees that the release set
forth above may be pleaded as a full and complete defense and may be used as a
basis for an injunction against any action, suit or other proceeding which may
be instituted, prosecuted or attempted in breach of the provisions of such
release.
(b) Each Borrower, on behalf of itself and its successors, assigns,
and other legal representatives, hereby absolutely, unconditionally and
irrevocably, covenants and agrees with and in favor of each Released Party above
that it will not xxx (at law, in equity, in any regulatory proceeding or
otherwise) any Released Party on the basis of any claim released, remised and
discharged by such Borrower pursuant to the above release. If any Borrower or
any of its successors, assigns, or other legal representations violates the
foregoing covenant, Borrowers, jointly and severally, for themselves and their
respective successors, assigns and legal representatives, agree to pay, in
addition to such other damages as any Released Party may sustain as a result of
such violation, all attorneys' fees and costs incurred by such Released Party as
a result of such violation.
7. Amendment to Loan Agreement. Section 7.1 of the Loan Agreement is
hereby amended by (i) deleting the word "and" at the end of subsection (f)
thereof, (ii) replacing the "." at the end of subsection (g) thereof with ";
and" and (iii) adding the following as subsection (h) thereof:
"(h) to the extent subject to a subordination agreement, in form and
substance satisfactory to Agent, in favor of Agent for the benefit of the
Lenders, Indebtedness owed to (i) X X Xxxxxx Capital Management Limited, a
company organized under the laws of England, pursuant to that certain
Promissory Note, dated December 5, 2003, made by Parent in the original
principal amount of $776,897, (ii) American Opportunity Trust plc, an
investment trust organized under the laws of England, pursuant to that
certain Promissory Note, dated December 5, 2003, made by Parent in the
original principal amount of $1,643,757, and (iii) The Trident North
Atlantic Fund, an exempted company organized under the laws of the Cayman
Islands, pursuant to that certain Promissory Note, dated December 5, 2003,
made by Parent in the original principal amount of $1,165,346 (all such
notes collectively referred to as the "Hambro Notes"); provided, that, no
payments of any kind may be made by any Borrower with respect to such
Indebtedness except as permitted by such subordination agreement."
8. Effectiveness of this Agreement. Agent must have received the
following items, in form and content acceptable to Agent and the Lenders,
before this Agreement is effective, and before the Lenders are required to
continue to extend credit to Borrowers as provided for under the Loan Agreement
as modified by this Agreement:
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(a) this Agreement and the attached Acknowledgement and Release by
Guarantors, each fully executed in a sufficient number of counterparts for
distribution to all parties;
(b) the Consent, executed or acknowledged, as applicable, by the
parties indicated therein;
(c) a subordination agreement duly executed by each of X X Xxxxxx
Capital Management Group Limited, a company organized under the laws of England,
X X Xxxxxx Capital Management Limited, a company organized under the laws of
England, American Opportunity Trust plc, an investment trust organized under the
laws of England, and the Trident North Atlantic Fund, an exempted company
organized under the laws of the Cayman Islands, and acknowledged by each
Borrower and each Guarantor, with respect to the Indebtedness owed to such
Persons by Parent;
(d) copies of the Hambro Notes, the terms of which are satisfactory
to Agent and the Lenders, including, without limitation, the maturity dates
thereof, which must be a date not earlier than 90 days after the Maturity Date;
(e) except for the existence of the Known Existing Defaults, the
representations and warranties set forth herein and in the Loan Agreement must
be true and correct; and
(f) all other documents and legal matters in connection with the
transactions contemplated by this Agreement shall have been delivered or
executed or recorded and shall be in form and substance satisfactory to Agent
and the Lenders.
9. Representations and Warranties. Each Borrower represents and
warrants as follows:
(a) Authority. Each Borrower has the requisite corporate power and
authority to execute and deliver this Agreement, and to perform its obligations
hereunder and under the Loan Documents (as amended or modified hereby) to which
it is a party. The execution, delivery and performance by such Borrower of this
Agreement have been duly approved by all necessary corporate action and no
other corporate proceedings are necessary to consummate such transactions.
(b) Enforceability. This Agreement has been duly executed and
delivered by each Borrower. This Agreement and each Loan Document (as amended
or modified hereby) is the legal, valid and binding obligation of each Borrower,
enforceable against such Borrower in accordance with its terms, and is in full
force and effect.
(c) Representations and Warranties. The representations and
warranties contained in each Loan Document (other than any such representations
or warranties that, by their terms, are specifically made as of a date other
than the date hereof) are correct on and as of the date hereof as though made on
and as of the date hereof as modified by any changes to the schedules to the
Loan Agreement reported to the Agent or the Lenders. Parent confirms any
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changes in such schedules which are required to be reported to the Agent or the
Lenders under the terms of the Loan Agreement have been reported.
(d) Due Execution. The execution, delivery and performance of
this Agreement are within the power of each Borrower, have been duly authorized
by all necessary corporate action, have received all necessary governmental
approval, if any, and do not contravene any law or any contractual restrictions
binding on such Borrower.
(e) No Default. Other than the Known Existing Defaults, no event
has occurred and is continuing that constitutes an Event of Default.
(f) No Duress. This Agreement has been entered into without force
or duress, of the free will of each Borrower. Each Borrower's decision to enter
into this Agreement is a fully informed decision and such Borrower is aware of
all legal and other ramifications of such decision.
(g) Counsel. Each Borrower has read and understands this
Agreement, has consulted with and been represented by legal counsel in
connection herewith, and has been advised by its counsel of its rights and
obligations hereunder and thereunder.
10. Choice of Law. The validity of this Agreement, its construction,
interpretation and enforcement, the rights of the parties hereunder, shall be
determined under, governed by, and construed in accordance with the internal
laws of the State of New York governing contracts only to be performed in that
State.
11. Counterparts. This Agreement may be executed in any number of
counterparts and by different parties and separate counterparts, each of which
when so executed and delivered, shall be deemed an original, and all of which,
when taken together, shall constitute one and the same instrument. Delivery of
an executed counterpart of a signature page to this Agreement by telefacsimile
shall be effective as delivery of a manually executed counterpart of this
Agreement.
12. Reference to and Effect on the Loan Documents.
(a) Upon and after the effectiveness of this Agreement, each
reference in the Loan Agreement to "this Agreement", "hereunder", "hereof" or
words of like import referring to the Loan Agreement, and each reference in the
other Loan Documents to "the Loan Agreement", "thereof" or words of like import
referring to the Loan Agreement, shall mean and be a reference to the Loan
Agreement as modified and amended by Section 7 hereof.
(b) Except as specifically amended above, the Loan Agreement and
all other Loan Documents, are and shall continue to be in full force and effect
and are hereby in all respects ratified and confirmed and shall constitute the
legal, valid, binding and enforceable obligations of each Borrower to Agent and
the Lenders.
(c) The execution, delivery and effectiveness of this Agreement
shall not, except as expressly provided herein, operate as a waiver of any
right, power or remedy of Agent
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or any Lender under any of the Loan Documents, nor constitute a waiver of any
provision of any of the Loan Documents.
(d) To the extent that any terms and conditions in any of the
Loan Documents shall contradict or be in conflict with any terms or conditions
of the Loan Agreement, after giving effect to this Agreement, such terms and
conditions are hereby deemed modified or amended accordingly to reflect the
terms and conditions of the Loan Agreement as modified or amended hereby.
13. Estoppel. To induce Agent and the Lenders to enter into this
Agreement and to continue to make advances to Borrowers under the Loan
Agreement, each Borrower hereby acknowledges and agrees that, other than the
Known Existing Defaults, as of the date hereof, there exists no Event of
Default and no right of offset, defense, counterclaim or objection in favor of
such Borrower as against Agent or any Lender with respect to the Obligations.
14. Integration. This Agreement, together with the other Loan Documents,
incorporates all negotiations of the parties hereto with respect to the subject
matter hereof and is the final expression and agreement of the parties hereto
with respect to the subject matter hereof.
15. Severability. In case any provision in this Agreement shall be
invalid, illegal or unenforceable, such provision shall be severable from the
remainder of this Agreement and the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
16. Modification. This Agreement may not be amended, waived or modified
in any manner without the written consent of the party against whom the
amendment, waiver or modification is sought to be enforced.
17. Submission of Agreement. The submission of this Agreement to the
parties or their agents or attorneys for review or signature does not
constitute a commitment by Agent or the Lenders to forbear from the exercise of
their rights and remedies under the Loan Documents, and this Agreement shall
have no binding force or effect until all of the conditions to the
effectiveness of this Agreement have been satisfied as set forth herein.
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IN WITNESS WHEREOF, the parties have entered into this Agreement as of
the date first above written.
XXXXX FARGO FOOTHILL, INC.,
a California corporation,
as Agent and as a Lender
By: /s/ Xxxxxx X. Xxxxxxxx
_________________________
Title: Vice President
_________________________
ABLECO FINANCE LLC,
a Delaware limited liability company,
as a Lender
By:
_________________________
Title:
_________________________
MERCURY AIR GROUP, INC.,
a Delaware corporation
By:
_________________________
Title:
_________________________
MERCURY AIR CENTERS, INC.,
a California corporation
By:
_________________________
Title:
_________________________
MERCURY AIR CARGO, INC.,
a California corporation
By:
_________________________
Title:
_________________________
Signature Page to Fifth Amendment to Loan and Security
Agreement and Forbearance Agreement
IN WITNESS WHEREOF, the parties have entered into this Agreement as of
the date first above written.
XXXXX FARGO FOOTHILL, INC.,
a California corporation,
as Agent and as a Lender
By:_________________________
Title:______________________
ABLECO FINANCE LLC,
a Delaware limited liability company,
as a Lender
By: /s/ Xxxxx Xxxxx
_________________________
Title: Senior Vice President
_____________________
MERCURY AIR GROUP, INC.,
a Delaware corporation
By:_________________________
Title:______________________
MERCURY AIR CENTERS, INC.,
a California corporation
By:_________________________
Title:______________________
MERCURY AIR CARGO, INC.,
a California corporation
By:_________________________
Title:______________________
IN WITNESS WHEREOF, the parties have entered into this Agreement as of the
date first above written.
XXXXX FARGO FOOTHILL, INC.,
a California corporation,
as Agent and as a Lender
By:_____________________________________
Title:__________________________________
ABLECO FINANCE LLC,
a Delaware limited liability company,
as a Lender
By:_____________________________________
Title:__________________________________
MERCURY AIR GROUP, INC.,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxxx
_____________________________________
Title: Chief Executive Officer
President & Director
__________________________________
MERCURY AIR CENTERS, INC.,
a California corporation
By: /s/ Xxxxxx X. Xxxxxx
_____________________________________
Title: Chief Executive Officer,
President & Director
__________________________________
MERCURY AIR CARGO, INC.,
a California corporation
By: /s/ Xxxxxx X. Xxxxxx
_____________________________________
Title: Chief Executive Officer
and Chairman of Board
__________________________________
MERCFUEL, INC.,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxxx
_____________________________________
Title: Executive Vice President and
Chief Financial Officer
__________________________________
MAYTAG AIRCRAFT CORPORATION,
a Colorado corporation
By: /s/ Xxxxxx X. Xxxxxx
_____________________________________
Title: Chief Executive Officer
and Chairman of the Board
__________________________________
HERMES AVIATION, INC.,
a California corporation
By: /s/ Xxxxxx X. Xxxxxx
_____________________________________
Title: Chief Executive Officer
and Chairman of the Board
__________________________________
MERCURY AIR CENTER-BIRMINGHAM, LLC,
an Alabama limited liability company
By: /s/ Xxxxxx X. Xxxxxx
_____________________________________
Title: Member
__________________________________
MERCURY AIR CENTER-BAKERSFIELD, INC.,
a California corporation
By: /s/ Xxxxxx X. Xxxxxx
_____________________________________
Title: Chief Executive Officer,
President & Director
__________________________________
MERCURY AIR CENTER-BURBANK, INC.,
a California corporation
By: /s/ Xxxxxx X. Xxxxxx
_____________________________________
Title: Chief Executive Officer,
President & Director
__________________________________
MERCURY AIR CENTER-FRESNO, INC.,
a California corporation
By: /s/ Xxxxxx X. Xxxxxx
_____________________________________
Title: Chief Executive Officer,
President & Director
__________________________________
MERCURY AIR CENTER-LOS ANGELES, INC.,
a California corporation
By: /s/ Xxxxxx X. Xxxxxx
_____________________________________
Title: Chief Executive Officer,
President & Director
__________________________________
MERCURY AIR CENTER-ONTARIO, INC.,
a California corporation
By: /s/ Xxxxxx X. Xxxxxx
_____________________________________
Title: Chief Executive Officer,
President & Director
__________________________________
MERCURY AIR CENTER-SANTA XXXXXXX, INC.,
a California corporation
By: /s/ Xxxxxx X. Xxxxxx
_____________________________________
Title: Chief Executive Officer,
President & Director
__________________________________
MERCURY AIR CENTER-HARTSFIELD, LLC,
a Georgia limited liability company
By: /s/ Xxxxxx X. Xxxxxx
_____________________________________
Title: Member
__________________________________
MERCURY AIR CENTER-PEACHTREE-DEKALB,
LLC,
a Georgia limited liability company
By: /s/ Xxxxxx X. Xxxxxx
_____________________________________
Title: Member
__________________________________
MERCURY AIR CENTER-FT. XXXXX, LLC.,
an Indiana limited liability company
By: /s/ Xxxxxx X. Xxxxxx
_____________________________________
Title: Member
__________________________________
MERCURY AIR CENTER-JACKSON, LLC.,
a Mississippi limited liability company
By: /s/ Xxxxxx X. Xxxxxx
_____________________________________
Title: Member
__________________________________
MERCURY AIR CENTER-RENO, LLC,
a Nevada limited liability company
By: /s/ Xxxxxx X. Xxxxxx
_____________________________________
Title: Member
__________________________________
MERCURY AIR CENTER-TULSA, LLC.,
an Oklahoma limited liability company
By: /s/ Xxxxxx X. Xxxxxx
_____________________________________
Title: Member
__________________________________
MERCURY AIR CENTER-CHARLESTON, LLC.,
a South Carolina limited liability
company
By: /s/ Xxxxxx X. Xxxxxx
_____________________________________
Title: Member
__________________________________
MERCURY AIR CENTER-XXXXX ISLAND, LLC.,
a South Carolina limited liability
company
By: /s/ Xxxxxx X. Xxxxxx
_____________________________________
Title: Member
__________________________________
MERCURY AIR CENTER-NASHVILLE, LLC.,
a Delaware limited liability company
By: /s/ Xxxxxx X. Xxxxxx
_____________________________________
Title: Member
__________________________________
MERCURY AIR CENTER-ADDISON, INC.,
a Texas corporation
By: /s/ Xxxxxx X. Xxxxxx
_____________________________________
Title: Chief Executive Officer,
President & Director
__________________________________
MERCURY AIR CENTER-CORPUS CHRISTI, INC.,
a Texas corporation
By: /s/ Xxxxxx X. Xxxxxx
_____________________________________
Title: Controller & Assistant Secretary
__________________________________
ACKNOWLEDGEMENT BY GUARANTORS
Dated as of December 5, 2003
Each of the undersigned, being a Guarantor (each a "Guarantor" and
collectively, the "Guarantors") under their respective Guaranty and Security
Agreement, dated December 30, 2002 and made in favor of Agent for the benefit
of the Lenders (each a "Guaranty" and collectively, the "Guaranties"), hereby
acknowledges and agrees to the foregoing Fifth Amendment to Loan and Security
Agreement and Forbearance Agreement (the "Agreement") and confirms and agrees
that its Guaranty is and shall continue to be, in full force and effect and is
hereby ratified and confirmed in all respects except that, upon the
effectiveness of, and on and after the date of the Agreement, each reference in
such Guaranty to the Loan Agreement (as defined in the Agreement),
"thereunder", "thereof" or words of like import referring to the "Loan
Agreement", shall mean and be a reference to the Loan Agreement as amended or
modified by Section 7 of the Agreement. Although Lender has informed Guarantors
of the matters set forth above, the Guarantors have acknowledged the same, each
Guarantor understands and agrees that Lender has no duty under the Loan
Agreement, the Guaranties or any other agreement with either Guarantor to so
notify and Guarantor or to seek such an acknowledgement, and nothing contained
herein is intended to or shall create such a duty as to any advances or
transaction hereafter.
Each Guarantor hereby absolutely and unconditionally releases and forever
discharges each Released Party, from any and all claim, demands or causes of
action of any kind, nature or description, whether arising in law or equity or
upon contract or tort or under any state or federal law or otherwise, which such
Guarantor has had, now has or has made claim to have against any such person
for or by reason of any act, omission, matter, cause or thing whatsoever arising
from the beginning of time to and including the date hereof, whether such
claim, demands and causes of action are matured or unmatured or known or
unknown. It is the intention of each Guarantor in providing this release that
the same shall be effective as a bar to each and every claim, demand and cause
of action specified, and in furtherance of this intention it waives and
relinquishes, to the extent permitted by applicable law, all rights and benefits
under any provision of any applicable law that may provide that a general
release does not extend to claims which the person giving the release does not
know or suspect to exist in its favor at the time of executing the release,
which if known by it might have materially affected its settlement with the
recipient of the release. Each Guarantor acknowledges that it may hereafter
discover facts different from or in addition to those now known or believed to
be true with respect to such claims, demands, or causes of action and agree that
this instrument shall be and remain effective in all respects notwithstanding
any such differences or additional facts. Each Guarantor understands,
acknowledges and agrees that the release set forth above may be pleaded as a
full and complete defense and may be used as a basis for an injunction against
any action, suit or other proceeding which may be instituted, prosecuted or
attempted in breach of the provisions of such release. Each Guarantor, on behalf
of itself and its successors, assigns, and other legal representatives, hereby
absolutely, unconditionally and irrevocably, covenants and agrees with and in
favor of each Released Party above that it will not xxx (at law, in equity, in
any regulatory proceeding or otherwise) any Released Party on the basis of any
claim released, remised and discharged by such Guarantor pursuant to the above
release. If any Guarantor or any of its successors, assigns or other legal
representations violates the foregoing covenant, such Guarantor, for itself and
its
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successors, assigns and legal representatives, agrees to pay, in addition to
such other damages as any Released Party may sustain as a result of such
violation, all attorneys' fees and costs incurred by such Released Party as a
result of such violation.
EXCEL CARGO, INC.,
a California corporation
By: /s/ Xxxxxx X. Xxxxxx
-----------------------
Title Chief Executive Officer
-----------------------
Assistant Secretary
VULCAN AVIATION, INC.,
a California corporation
By: /s/ Xxxxxx X. Xxxxxx
-----------------------
Title Chief Executive Officer
-----------------------
President & Director
MERCURY ACCEPTANCE CORPORATION,
a California corporation
By: /s/ Xxxxxx X. Xxxxxx
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Title Chief Executive Officer
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Chairman of the Board
JUPITER AIRLINE AUTOMATION
SERVICES, INC.,
a Florida corporation
By: /s/ Xxxxxx X. Xxxxxx
-----------------------
Title Chief Executive Officer
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Chairman of the Board
AEG FINANCE CORPORATION,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxxx
-----------------------
Title Chief Executive Officer
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Chairman of the Board
Signature Page to Fifth Amendment to Loan and Security
Agreement an Forbearance Agreement
