EXHIBIT 10.41
STANDSTILL
LETTER
March 31, 2000
Bank of America, N.A. First Security Bank, National Assoc.
One Financial Plaza 00 Xxxxx Xxxx Xxxxxx, 0xx Xxxxx
Xx. Xxxxxxxxxx, Xxxxxxx 00000 Xxxx Xxxx Xxxx, Xxxx 00000-0000
Attention: Xxxx Xxxx Attn: Xxx X. Xxxxx
RE: Participation Agreement, dated as of December 17, 1998, as
amended by Amendment No. 1 for Participation Agreement and
Certain Other Operative Agreements dated as of February 18,
2000 ("Amendment No. 1") (the "Participation Agreement") among
Aviation Sales Company, as Lessee/Construction Agent, First
Security Bank, National Association, as Owner Trustee ("Owner
Trustee") under the Aviation Sales Trust 1998-1, the Holders
party thereto, the Lenders parties thereto, and Bank of
America, N.A., d/b/a NationsBank, N.A., successor to
NationsBank, National Association, as administrative agent for
the Lenders ("Agent")
Lease Agreement dated as of December 17, 1998, as amended by
Amendment No. 1, ("Lease") between First Security Bank,
National Association, solely as Owner Trustee under the
Aviation Sales Trust 1998-1, as Lessor, and Aviation Sales
Company, as Lessee
Gentlemen:
Reference is made to the Participation Agreement, to the Lease and to
the Operative Agreements executed and delivered in connection therewith.
Capitalized terms used herein but not otherwise defined herein shall have the
meanings set forth in the Participation Agreement.
Aviation Sales Company ("AVS") confirms the following to the Agent and
the Owner Trustee:
(A) The lenders under the Aviation Sales Credit Agreement have
agreed, pursuant to the terms of Amendment No. 9, Wavier,
Consent and Standstill dated as of March 31, 2000 ("Amendment
No. 9"), to continue to make revolving loans under the
Aviation Sales Credit Agreement for a period through May 31,
2000 ("Existing Credit Facility Standstill Period") subject to
certain conditions and reserving all rights, and to
continue to forbear through May 31, 2000 from exercising their
rights and remedies under the Aviation Sales Credit Agreement
with respect to certain events of default thereunder as
identified on Schedule 1 attached to Amendment No. 9 and
therefore, each such asserted default is potentially an
"Aviation Sales Credit Agreement Event of Default".
(B) AVS (i) has obtained, pursuant to the terms of Amendment No.
9, the consents from the Existing Credit Agent and required
lenders under the Aviation Sales Credit Agreement necessary
for the elimination of the Series A Guaranty Cap (as defined
in Amendment No. 1), (ii) hereby confirms toAgent and Owner
Lessor that the Series A. Guaranty Cap has been eliminated and
(iii) has delivered or caused the delivery of the required
Letter of Credit in the amount of $12,000,000.
(C) An agreement ("Norlease Standstill") has been executed and
delivered by the parties to that certain Term Loan Agreement
dated June 5, 1998, among Norlease, Inc., ("Norlease"),
Aviation Sales SPS I, Inc., and Aviation Sales Company (the
"Norlease Agreement") pursuant to which the lender thereunder
has agreed to forebear from exercising its rights and remedies
under the Norlease Agreement with respect thereto for a period
through May 31, 2000 ("Norlease Standstill Period").
1. AVS requests that you agree that during the TROL Standstill Period
(defined below) you will not exercise your remedies with respect to any of the
events described in Items 1-9 listed in the chart below (the "Standstill
Events") as a result of any Default or Event of Default under the respective
provisions of the Lease and the Agency Agreement listed in the chart next to
such Standstill Event:
STANDSTILL EVENT SECTION
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1. The Change of Control arising by virtue Section 28.3(n) of the Lease.
of the sole Director of Aviation Sales
Operating Company being Xxxx X.
Xxxxx
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2. The $2,500,000 investment made by Section 28.1(b) and Section 28.3(d) of the
Triad International Maintenance Lease.
Corporation("TIMCO")in
Xxxxxxxx/XXXXX Cargo Conversions, LLC
under Section 2.7 of the Operating
Agreement, dated September 10, 1999
between TIMCO and Xxxxxxxx Aviation, Inc.
("Operating Agreement") and the $1,700,000
investment subsequently made by TIMCO in
Xxxxxxxx/XXXXX Cargo Conversions, LLC
pursuant to Section 2.8 of the Operating
Agreement, and the failure of AVS to give
you timely notice thereof.
3. The fact that the items listed in Section 17.1(n) of the Lease.
Schedule 1 of Amendment 9, a copy of
which is attached hereto as EXHIBIT A
may or do constitute an Aviation Sales
Credit Agreement Event of Default.
4. The existence of a Material Adverse Section 17.1(p)(i) of the Lease
Change in the financial condition of
Aviation Sales and its subsidiaries as of
12/31/99 as presented by Aviation
Sales to the Agent on March 21, 2000.
5. The existence of the shareholder Section 28.1(b) and Section 28.1(c) of the
litigation in the case styled Xxxxxx v. Lease
Xxxxx, et al, case no. 99-2560-Civ-
Morena, U.S. Dist.Ct., So. Dist. Of
Florida which may result in a Material
Adverse Effect and the failure to give
quarterly reports with respect thereto
prior to the date hereof.
6. Failure to comply with the financial Sections 28.4(a)(b)(c)(d) and (e) of the Lease
covenants set forth in the Lease for the
period ending December 31, 1999.
7. The approximately $33,033,000 in Section 28.1(b) and Section 28.4(e) of the
capital expenditures for fiscal year Lease.
1999, and the failure of AVS to give
you timely notice thereof.
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8. Failure to timely deliver, prior to the Section 28.1(a)(ii)(iii)(iv) and (v) of the Lease.
date hereof, the annual reports, the
officer's certificates, the accountant's
statement and privity letter for the fiscal
year ending December 31, 1999 and the
budgets, business plans and financial
projections for the fiscal year ending
December 31, 2000 required by the
Lease.
9. Cross-default arising with respect to Section 17.1(f) and Section 28.1(b) of the
the existence of a default under the Lease
Norlease Agreement as more
particularly described in the Norlease
Standstill, a copy of which is attached
hereto as EXHIBIT B.
PROVIDED that nothing contained herein shall preclude your exercise of remedies
after the TROL Standstill Period with respect to any Default or Event of Default
resulting from any Standstill Event.
2. For the purposes of this Standstill, "TROL Standstill Period" shall
mean the period commencing upon the date hereof through the earlier of:
(w) May 31, 2000;
(x) that date upon which the Aviation Sales Credit Agent or
any lender under the Aviation Sales Credit Agreement declares in
writing that the Existing Credit Facility Standstill Period has
terminated, or exercises any remedy with respect to any default,
prospective default or event of default under the Aviation Sales Credit
Agreement; or
(y) that date upon which Norlease declares in writing that the
Norlease Standstill Period has terminated, or exercises any remedy with
respect to any default, prospective default or event of default under
the Norlease Agreement; or
(z) the occurrence of any other Default or Event of Default
under the Participation Agreement, the Lease or any other Operative
Agreement.
3. The Lenders and the Holders agree, notwithstanding the existence of
the Standstill Events and the failure of AVS to have the Defaults or Events of
Default referred to in the Standstill Letter dated February 18, 2000 (a copy of
which is attached as EXHIBIT C) permanently waived or cured as of the date
hereof, (a) the Total Commitment shall mean (i) with respect to the Series A
Loans, $37,840,000, and (ii) with respect to the Series B Loans, $3,870,000; and
(b) the Total Holder Commitment shall mean $1,290,000.
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4. This Standstill shall become effective as of March 31, 2000, if and
only if, (i) the Agent shall have received:
(a) a facsimile or original executed copy of this Standstill
executed by AVS, the Guarantors, the Agent and the Owner Trustee.
(b) an agreement executed and delivered by the respective
parties to the Aviation Sales Credit Agreement pursuant to which all events of
default and defaults under the Aviation Sales Credit Agreement and the rights
and remedies of the parties thereunder arising with respect thereto have been
waived or an agreement in form and substance satisfactory to the Agent with
respect to the forbearance from exercising such rights and remedies (either such
agreement being referred to as the "Aviation Sales Credit Agreement
Standstill"), and the satisfaction of the conditions to the effectiveness of the
Aviation Sales Credit Agreement Standstill.
(c) an agreement executed and delivered by the respective
parties to the Norlease Agreement pursuant to which all events of default and
defaults under the Norlease Agreement and the rights and remedies of the parties
thereunder arising with respect thereto have been waived or an agreement in form
and substance satisfactory to the Agent with respect to the forbearance from
exercising such rights and remedies (either such agreement being referred to as
the "Norlease Standstill"), and the satisfaction of the conditions to the
effectiveness of the Norlease Standstill.
(d) A Guaranty Agreement (Series A Obligations) and a Guaranty
Agreement (Lessee Obligations) executed by TIMCO Engineered Systems, Inc., a
newly formed Subsidiary of TIMCO, together with the opinion of outside counsel
and the certificates and other documents required under Section 28.2 (i) of the
Lease.
(e) an opinion of outside counsel to AVS and the Guarantors
with respect to non-contravention of the Aviation Sales Credit Agreement, the
Norlease Agreement, and the agreements under which the Subordinated Notes have
been issued by this Standstill.
(f) corporate resolutions of AVS and the Guarantors
authorizing the execution and delivery of this Standstill and all instruments
and documents required to be executed in connection herewith.
(ii) no "Event of Default" shall have occurred and be continuing under the terms
of the Indenture under which the Subordinated Notes have been issued, as
supplemented through the date of this Standstill, and (iii) no "Change of
Control" (as defined in such Indenture) shall have occurred.
5. The agreements of the Lenders and the Holders set forth in paragraph
2 above shall be further subject to each of the following conditions:
(a) no Default or Event of Default other than the Standstill
Events shall exist on the date of this Standstill;
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(b) no events of default, defaults or prospective defaults
under the Aviation Sales Credit Agreement or the Norlease Agreement in addition
to those described in and subject to the agreements set forth in the 9th
Amendment and the Norlease Standstill, respectively, shall occur on or after the
date of this Standstill;
(c) no "Event of Default", default or prospective default
shall have occurred and be continuing under the terms of the Note Indenture
under which the Subordinated Notes have been issued, as supplemented through the
date of this Standstill, and no "Change of Control" (as defined in such Note
Indenture) shall have occurred;
(d) the Financial Statements described in Section 28.1(a) of
the Lease for the Fiscal Year ending December 31, 1999, together with the report
of Xxxxxx Xxxxxxxx LLP on such Financial Statements, which report shall not be
materially different, as determined by the Agent, from that represented to be
expected by AVS and the Guarantors to the Agent on March 21, 2000, shall have
been delivered to the Agent by no later than April 15, 2000 or the Agent shall
have agreed in writing to an extension of the delivery date; and
(e) on the date hereof, AVS shall reimburse the Agent for the
expenses identified on Schedule 1 attached hereto and made a part hereof, and,
on the date indicated below, AVS shall pay to the Agent a standstill fee in the
amount of $107,500 ("Standstill Fee") as consideration for Agent's forbearance
as set forth herein with respect to the exercise of Agent's rights and remedies
against AVS and the Guarantors under the Lease and other Operative Documents.
The Standstill Fee shall be earned on the date of this Standstill and shall be
due and payable on the earlier of two (2) days after the Property Completion
Date for the Property located in Miramar, Florida or May 29, 2000. In the event
payment is not received by the Agent on or before May 29, 2000, Agent is hereby
authorized to advance Loans and Holder Fundings under the Operative Agreements
to pay the Standstill Fee. Lessee agrees that neither Agent nor Owner Trustee
makes any representation or warranty with respect to the Lessee's accounting
treatment of such Standstill Fee.
6. Each of the undersigned Guarantors has joined in the execution of
this Standstill for the purpose of (i) agreeing to the terms and conditions
contained herein and (ii) confirming its guarantee of payment of all Borrower's
Liabilities (as defined in the Series A Guaranty Agreement) and all Lessee's
Liabilities (as defined in the Lessee Guaranty Agreement).
7. Agent and Owner Trustee may grant the requested consents and
standstill agreements described herein by countersigning a copy of this letter.
Notwithstanding the execution and delivery of this letter by Agent and Owner
Trustee, nothing contained herein shall be deemed to waive, or release AVS or
any other Person from compliance with any other provision of any Operative
Agreement (including without limitation any financial covenant contained in
Section 28.4 of the Lease). In addition, Agent and Owner Trustee do not waive
any Default or Event of Default resulting from any Standstill Event.
Furthermore, Agent and Owner Trustee do not waive the application of any
provision of the Lease, the Agency Agreement or any other Operative Agreement
with respect to any other event or matter.
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8. The parties agree that during the TROL Standstill Period, each shall
endeavor to negotiate in good faith a mutually agreeable amendment to the
affirmative and negative covenants, financial covenants, pricing and other terms
of the Participation Agreement, the Lease and the Operative Documents.
9. AVS represents and warrants that, after giving effect to this
Standstill and to the Standstill, Waiver and Consent Letter dated February 18,
2000, as well as to the waivers and consents dated ________ __, 1999, August 12,
1999 and June 11, 1999, no Default or Event of Default has occurred and is
continuing as of the date hereof (other than the Standstill Events), and that no
default, prospective default or event of default exists under the Aviation Sales
Credit Agreement (other than the Standstill Events).
10. Except as consented to as expressly set forth above, (a) the
execution and delivery of this Standstill shall in no way affect any right,
power or remedy of the Agent, Lenders, Holders or Owner Trustee with respect to
any Default or Event of Default or constitute a waiver of any provision of the
Participation Agreement, the Lease or any of the other Operative Agreements and
(b) the Participation Agreement, the Lease and the other Operative Agreements,
and all other documents, instructions, and agreements executed and/or delivered
pursuant thereto and in connection therewith shall remain in full force and
effect and are hereby ratified and confirmed.
11. This Standstill may be executed in one or more counterparts, each
of which shall constitute one and the same document. Delivery of an executed
counterpart by facsimile transmission shall be effective as delivery of a
manually executed counterpart hereof.
12. This Standstill shall be governed by and construed in accordance
with the laws of the State of Florida.
[continued next page]
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IN WITNESS WHEREOF, this Standstill, Waiver and Consent has been duly
executed and delivered as of the day and year first above written.
AVIATION SALES COMPANY,
as Lessee and as Construction Agent
By:_________________________________
Name:_______________________________
Title:______________________________
BANK OF AMERICA, N.A., as
Administrative Agent, as a Lender and as a
Holder
By:____________________________________
Name:__________________________________
Title:_________________________________
FIRST SECURITY BANK, NATIONAL
ASSOCIATION, not individually, but
solely as Owner Trustee under the Aviation
Sales Trust 1998-1, and as Lessor
By:____________________________________
Name:__________________________________
Title:_________________________________
[Signatures of the Guarantors on the following pages 9 & 10]
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IN WITNESS WHEREOF, each of the Guarantors joins in and
consent to the foregoing Standstill Letter as of the date first above written.
AVIATION SALES COMPANY
AVIATION SALES MANUFACTURING COMPANY
AVIATION SALES PROPERTY MANAGEMENT
CORP.
AVIATION SALES FINANCE COMPANY
TIMCO ENGINE CENTER, INC.
AVS/XXXXX-XXXXX MACHINE COMPANY
APEX MANUFACTURING, INC.
AEROCELL STRUCTURES, INC.
AVIATION SALES DISTRIBUTION SERVICES
COMPANY
AVIATION SALES BEARINGS 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:___________________________________________________
Name:_________________________________________________
Title: ___________ of each of the foregoing Guarantors
AVSRE, L.P.
By: Aviation Sales Property Management Corp., its
general partner
By: _____________________________________
Name: ___________________________________
Title: ____________________________________
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[Continuation Signature Page to Standstill Letter]
AVIATION SPS I, INC.
By:_____________________________________
Name: ___________________________________
Title: ____________________________________
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