EXHIBIT 10.3
AMENDMENT AGREEMENT NO. 1 FOR
PARTICIPATION AGREEMENT
AND CERTAIN OTHER OPERATIVE AGREEMENTS
THIS AMENDMENT AGREEMENT is made and entered into as of the 18th day of
February, 2000, by and among AVIATION SALES COMPANY, a Delaware corporation
("Aviation Sales"), as Construction Agent (the "Construction Agent"); AVIATION
SALES COMPANY, as Lessee (the "Lessee"); FIRST SECURITY BANK, NATIONAL
ASSOCIATION, a national banking association, not individually, except as
expressly stated in the Operative Agreements, but solely as Owner Trustee under
the Aviation Sales Trust 1998-1 (the "Owner Trustee"); BANK OF AMERICA, N.A.,
d/b/a NationsBank, N.A., successor to NationsBank, National Association ("Bank
of America"), as a Holder and as a Lender; BANK OF AMERICA, N.A., d/b/a
NationsBank, N.A., successor to NationsBank, National Association, as
Administrative Agent (the "Agent"); each of the holders party to the Trust
Agreement (defined below) (the "Holders"); and each of the Lenders party to the
Credit Agreement (defined below)(the "Lenders").
W I T N E S S E T H:
WHEREAS, the Construction Agent, the Lessee, the Owner Trustee, the
Agent, the Lenders and the Holders have entered into the Participation Agreement
dated as of December 17, 1998 (the "Participation Agreement"); and
WHEREAS, the Owner Trustee, the Lenders and the Agent have entered into
the Credit Agreement dated as of December 17, 1998 (the "Credit Agreement"); and
WHEREAS, the Holders and the Owner Trustee have entered into the
Amended and Restated Trust Agreement dated as of December 17, 1998 (the "Trust
Agreement"); and
WHEREAS, the Owner Trustee and the Construction Agent have entered into
the Agency Agreement dated as of December 17, 1998 (the "Agency Agreement"); and
WHEREAS, the Owner Trustee and the Lessee have entered into the Lease
Agreement dated as of December 17, 1998 (the "Lease" or "Lease Agreement"); and
WHEREAS, Aviation Sales, Subsidiaries of Aviation Sales, and the Agent
have entered into the Guaranty Agreement (Series A Obligations) dated as of
December 17, 1998 (the "Series A Guaranty Agreement"); and the Subsidiaries of
Aviation Sales and the Owner Trustee have entered into the Guaranty Agreement
(Lessee Obligations) dated as of December 17, 1998 (the "Lessee Guaranty
Agreement"); and
WHEREAS, the parties hereto desire to amend the Participation
Agreement, the Credit Agreement and the Trust Agreement and certain other
Operative Agreements in the manner herein set forth effective as of the date
hereof;
NOW, THEREFORE, the Construction Agent, the Lessee, the Owner Trustee,
the Holders, the Agent and the Lenders do hereby agree as follows:
1. DEFINITIONS. The terms "Participation Agreement", "Credit
Agreement", "Trust Agreement", "Agency Agreement", "Lease" and "Lease Agreement"
as used herein and in the Operative Documents (as defined in the Participation
Agreement) shall mean such agreements as hereby amended and modified, and as
further amended, modified, supplemented or restated from time to time in
accordance with the terms thereof. Unless the context otherwise requires, all
terms used herein without definition shall have the definition provided therefor
in the Participation Agreement.
2. AMENDMENTS TO PARTICIPATION AGREEMENT. Subject to the conditions
hereof, the Participation Agreement is hereby amended, effective as of the date
hereof, as follows:
(a) Section 5.3(b)(xxii) of the Participation Agreement is
amended in its entirety, so that as amended it reads as follows:
"(xxii) The Agent shall have received an Appraisal of
such Property showing that such Property has a value at least
equal to $37,500,000; and"
(b) Section 5.4(e) of the Participation Agreement is amended
in its entirety, so that as amended it reads as follows:
"(e) with respect to each Initial Construction
Funding, the Agent and Owner Trustee shall have received a
copy of the Construction Budget for the completion of
Improvements to which such Funding relates, which Construction
Budget shall indicate a total Property Cost for such
Improvements, the Land on which such Improvements are to be
constructed, and all Transaction Expenses in connection
therewith, of not more than $43,000,000."
(c) The first sentence of Section 5.6 of the Participation
Agreement is amended, so that as amended the sentence will read as
follows: "On the Completion Date for each Property, the Construction
Agent shall deliver to the Agent and the Owner Trustee an Officer's
Certificate in the form attached hereto as EXHIBIT B specifying (a) the
Completion Date for the construction of Improvements at the Property,
and (b) the aggregate Property Cost of the Property."
(d) Section 10.3(g) of the Participation Agreement is amended
in its entirety, so that as amended it reads as follows:
"(g) The Lessee and the Construction Agent agree that
the aggregate Property Cost of each Property shall at all
times be less than $43,000,000."
(e) Section 10.3(h)(i) of the Participation Agreement is
amended by deleting the amount "$7,995,200" and inserting in its place
"$7,995,200 prior to March 1, 2000, or $12,00,000 at any time on or
after March 1, 2000".
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(f) Section 10.4(h) is further amended by adding the following
sentence at the end of such Section: "The parties hereto agree that the
failure to increase the amount of the Letter of Credit to $12,000,000
by March 1, 2000, or at any time to maintain the Letter of Credit in
the amount required by this Section 10.3(h), shall constitute an
immediate and automatic Lease Event of Default, Credit Agreement Event
of Default and Agency Agreement Event of Default)".
(g) Schedule 1 to the Participation Agreement is replaced in
its entirety by the Schedule 1 to Participation Agreement attached
hereto.
(h) Exhibit A to the Participation Agreement is replaced in
its entirety by the Exhibit A to Participation Agreement attached
hereto.
(i) Exhibit B to the Participation Agreement is replaced in
its entirety by the Exhibit B to Participation Agreement attached
hereto.
(j) Paragraph 5 of Exhibit J to the Participation Agreement is
amended by deleting the phrase "invoice __________ for payment" and
inserting in its place the phrase "invoice the Agent for payment."
(k) The following definition of "Amendment No. 1" is added to
Appendix A to the Participation Agreement, at the appropriate place in
such Appendix based on alphabetical order:
"'Amendment No. 1' shall mean that certain Amendment
Agreement No. 1 for Participation Agreement and Certain Other
Operative Agreements dated as of February 18, 2000 among the
Construction Agent, the Lessee, the Owner Trustee, the Agent,
and the Holders and Lenders party thereto".
(l) The definition of "Aviation Sales Credit Agreement Event
of Default" in Appendix A to the Participation Agreement is amended by
deleting the phrase "or any New Facility" from the third line thereof,
and deleting the phrase "or New Facility" from the fifth and eighth
lines thereof.
(m) The definition of "Construction Budget" in Appendix A to
the Participation Agreement is amended by adding the following sentence
immediately after such definition: "The initial Construction Budget for
the Property located in Miramar, Florida is attached as Exhibit K to
Amendment No. 1."
(n) The following definition of "Excluded Subsidiaries" is
added to Appendix A to the Participation Agreement, at the appropriate
place in such Appendix based on alphabetical order:
" 'Excluded Subsidiaries' shall have the meaning
assigned thereto in Exhibit D to the Lease Agreement."
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(o) The definition of "Guaranty Agreement" and "Guaranty" in
Appendix A to the Participation Agreement is amended in its entirety,
so that as amended it reads as follows:
"'Guaranty Agreement' or 'Guaranty' shall mean,
collectively, (a) the Guaranty Agreement (Series A
Obligations) dated as of the Initial Closing Date among each
Guarantor and the Agent, (b) the Guaranty Agreement (Lessee
Obligations) dated as of the Initial Closing Date among each
Guarantor (other than Aviation Sales) and the Lessor, and (c)
any other Guaranty Agreement by any Guarantor in favor of the
Lessor, the Agent, the Lenders and the Holders, as each such
agreement may be amended, supplemented, restated or modified
from time to time in accordance with the terms thereof."
(p) The definition of "Guarantors" in Appendix A to the
Participation Agreement is amended in its entirety, so that as amended
it reads as follows:
"'Guarantors' shall mean, collectively, Aviation
Sales and each of the Domestic Subsidiaries of Aviation Sales
other than Excluded Subsidiaries."
(q) The definition of "Letter of Credit" in Appendix to the
Participation Agreement is amended in its entirety, so that as amended
it reads as follows:
"'Letter of Credit' shall mean that certain standby
letter of credit dated as of the Initial Closing Date issued
by Citibank, N.A. ("Citibank") in favor of the Lessor and the
Agent (for itself and on behalf of the Series A Lenders) and
securing the obligations of the Lessee and the Construction
Agent under the Operative Agreements, as such letter of credit
may be amended, modified, restated or supplemented from time
to time by a letter of credit issued by Bank of America or
Citibank in favor of the Lessor and the Agent (for itself and
on behalf of the Series A Lenders)."
(r) Clause (b) of the definition of "Maximum Amount" in
Appendix A to the Participation Agreement is amended, so that as
amended such clause reads as follows:
"(b) the accreted value (calculated at a rate of
Seven and 702/1000 percent (7.702%) per annum) of any payments
previously made by the Construction Agent or the Lessee
regarding any and all Construction Period Properties and not
reimbursed; PLUS"
(s) The definition of "Scheduled Interest Payment Date" in
Appendix A to the Participation Agreement is amended in its entirety,
so that as amended it reads as follows:
"'Scheduled Interest Payment Date' shall mean (a) as
to any Eurodollar Loan (or Eurodollar Holder Funding), on the
last Business Day of the calendar month that includes the last
day of the Interest Period applicable to such Eurodollar Loan
(or Holder Funding), and (b) as to any Base Rate Loan (or Base
Rate Holder Funding), the last Business Day of each calendar
quarter, and (c) as to any Loan (or Holder Funding), the
Maturity Date."
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(t) The definition of "Tangible Personal Property" is deleted
from Appendix A to the Participation Agreement.
(u) The definition of "Total Commitment" in Appendix A to the
Participation Agreement is amended in its entirety, so that as amended
it reads as follows:
"'Total Commitment' shall mean (a) with respect to
the Series A Loans, $37,840,000, and (b) with respect to the
Series B Loans, $3,870,000; PROVIDED, HOWEVER, that until the
Agent receives the Letter of Credit in the amount of
$12,000,000 pursuant to SECTION 10.3(H)(I), the 'Total
Commitment' shall mean (y) with respect to the Series A Loans,
$31,252,056, and (z) with respect to the Series B Loans,
$3,196,233; and PROVIDED FURTHER that upon the Agent's receipt
of such Letter of Credit in the amount of $12,000,000, until
the Series A Guaranty Cap (as defined in Amendment No. 1) is
no longer in effect and no longer limits any Guarantors'
Obligations (as set forth in Section 8 of Amendment No. 1),
Aviation Sales has obtained from the Existing Credit Agent and
required lenders under the Existing Aviation Sales Credit
Agreement, as amended, all necessary consents to such
elimination of the Series A Guaranty Cap, and any Defaults or
Events of Default (including "Standstill Events") referred to
in the Standstill Letter (as defined in Amendment No. 1) have
been permanently waived or cured, the 'Total Commitment' shall
mean (I) with respect to the Series A Loans, $35,200,000, and
(II) with respect to the Series B Loans, $3,600,000."
(u) The definition of "Total Holder Commitment" in Appendix A
to the Participation Agreement is amended in its entirety, so that as
amended it reads as follows:
"'Total Holder Commitment' shall mean $1,290,000;
PROVIDED, HOWEVER, that until the Agent receives the Letter of
Credit in the amount of $12,000,000 pursuant to SECTION
10.3(H)(I), the 'Total Holder Commitment' shall mean
$1,065,411; and PROVIDED FURTHER that upon the Agent's receipt
of such Letter of Credit in the amount of $12,000,000, until
the Series A Guaranty Cap (as defined in Amendment No. 1) is
no longer in effect and no longer limits any Guarantors'
Obligations (as set forth in Section 8 of Amendment No. 1),
Aviation Sales has obtained from the Existing Credit Agent and
required lenders under the Existing Aviation Sales Credit
Agreement, as amended, all necessary consents to such
elimination of the Series A Guaranty Cap, and any Defaults or
Events of Default (including "Standstill Events") referred to
in the Standstill Letter (as defined in the Standstill Letter)
have been permanently waived or cured, the 'Total Holder
Commitment' shall mean $1,200,000."
3. AMENDMENTS TO CREDIT AGREEMENT. Subject to the conditions hereof,
the Credit Agreement is hereby amended, effective as of the date hereof, as
follows:
(a) Section 2.3(c) of the Credit Agreement is amended in its
entirety, so that as amended it reads as follows:
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"(c) The aggregate amount of any borrowing
constituting Eurodollar Loans and Eurodollar Holder Fundings
and any conversion thereof shall be in an amount of at least
$100,000."
(b) The last sentence of Section 2.7 of the Credit Agreement
is deleted and the following sentence is inserted in its place:
"Pursuant to the terms of the Participation Agreement, the
Borrower shall be deemed to have delivered such a notice upon
the delivery by the Construction Agent or the Lessee of a
notice in substantially the form of Exhibit L to Amendment No.
1. All or any part of outstanding Eurodollar Loans or Base
Rate Loans may be converted as provided herein, PROVIDED that
(i) no Base Rate Loan may be converted into a Eurodollar Loan
when any Event of Default has occurred and is continuing, (ii)
no Base Rate Loan may be converted into a Eurodollar Loan
which matures after the Maturity Date, (iii) during the
Commitment Period such conversion may only occur on the first
day of an Interest Period permitted pursuant to the terms of
SECTION 2.3 hereof and (iv) such notice of conversion shall
contain an election by the Borrower of an Interest Period for
such Eurodollar Loan to be created by such conversion and such
Interest Period shall be in accordance with the terms of the
definition of the term 'Interest Period' as set forth in
Appendix A to the Participation Agreement and PROVIDED,
FURTHER, that with respect to each conversion or continuation
of any Eurodollar Rate Loan, (y) if the Borrower shall fail to
give any required notice, such Loan shall be automatically
continued as a Eurodollar Rate Loan having a one-month
Interest Period, or (z) if continuation of any Eurodollar Rate
Loan is not permitted pursuant to the preceding provision,
such Loan shall be automatically converted to a Base Rate Loan
on the last day of such then expiring Interest Period."
(c) Schedule 1.2 to the Credit Agreement is replaced in its
entirety by the Schedule 1.2 to Credit Agreement attached hereto.
4. AMENDMENTS TO TRUST AGREEMENT. Subject to the conditions hereof, the
Trust Agreement is hereby amended, effective as of the date hereof, as follows:
(a) The last sentence of Section 3.8 of the Trust Agreement is
deleted and the following sentence is inserted in its place:
"Pursuant to the terms of the Participation Agreement, the
Borrower shall be deemed to have delivered such a notice upon
the delivery by the Construction Agent or the Lessee of a
notice in substantially the form of Exhibit L to Amendment No.
1. All or any part of outstanding Eurodollar Holder Fundings
or Base Rate Holder Fundings may be converted as provided
herein, PROVIDED that (i) no Base Rate Holder Funding may be
converted into a Eurodollar Holder Funding when any Event of
Default has occurred and is continuing, (ii) no Base Rate
Holder Funding may be converted into a Eurodollar Holder
Funding which matures after the Maturity Date, (iii) during
the Commitment Period such conversion may only occur on the
first day of an Interest Period permitted pursuant to the
terms of SECTION 3.1 and (iv) such notice of conversion shall
contain an election by the Borrower of an Interest Period
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for such Eurodollar Holder Funding to be created by such
conversion and such Interest Period shall be in accordance
with the terms of the definition of the term 'Interest Period'
as set forth in Appendix A to the Participation Agreement and
PROVIDED, FURTHER, that with respect to each conversion or
continuation of any Eurodollar Rate Holder Funding, (y) if the
Borrower shall fail to give any required notice, such Holder
Funding shall be automatically continued as a Eurodollar Rate
Holder Funding having a one-month Interest Period, or (z) if
continuation of any Eurodollar Rate Holder Funding is not
permitted pursuant to the preceding provision, such Holder
Funding shall be automatically converted to a Base Rate Holder
Funding on the last day of such then expiring Interest
Period."
(b) Exhibit A to the Trust Agreement is replaced in its
entirety by the Exhibit A to Trust Agreement attached hereto.
5. AMENDMENTS TO AGENCY AGREEMENT. Subject to the conditions hereof,
the Agency Agreement is hereby amended, effective as of the date hereof, as
follows:
(a) Section 3.2(a)(ii) of the Agency Agreement is amended by
deleting clause (C) thereof and inserting in its place the following:
"(C) result in the aggregate Construction Budget (as amended,
modified or revised) for any Property being larger than 100%
of the initial Construction Budget delivered to the Agent with
respect to such Property (prior to any amendments,
modifications or revisions); provided that in the case of the
Property located in Miramar, Florida, the initial Construction
Budget is deemed to be the Construction Budget attached as
Exhibit K to Amendment No. 1; and provided further that
nothing contained in this clause (C) shall be deemed to
increase the Commitment of any Lender or the Holder Commitment
of any Holder."
6. AMENDMENTS TO LEASE AGREEMENT. Subject to the conditions hereof, the
Lease Agreement is hereby amended, effective as of the date hereof, as follows:
(a) Section 28.1(a) of the Lease is amended by adding the
following sub-sections (vi) and (vii) at the end of such section:
"(vi) BORROWING BASE CERTIFICATES, NOTICES AND WAIVER
REQUESTS. Promptly (and in any event within five days after
the delivery thereof to the Existing Credit Agent or any
lender with respect to any Indebtedness), a copy of any
borrowing base certificate, notice, waiver request or any
other document or information that the Lessee or any of its
Subsidiaries may deliver to the Existing Credit Agent or any
such other lender or creditor.
"(vii) OTHER INFORMATION. Promptly such other
information concerning the business, operations, properties,
prospects or financial condition of Aviation Sales or any
Subsidiary as the Agent, the Lessor or the Majority Lenders
may reasonably request from time to time. "
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(b) Section 28.2 of the Lease is amended by adding the
following subparagraphs (i) and (j) immediately after subparagraph (h):
"(i) NEW SUBSIDIARIES. Promptly (and in any event
within 15 days) after the acquisition or creation of any
Domestic Subsidiary (other than an Excluded Subsidiary), cause
to be delivered to the Agent for the benefit of itself, the
Lenders, the Holders and the Owner Trustee each of the
following:
"(i) a Guaranty Agreement executed by such
Subsidiary substantially in the form of the Guaranty
Agreement (Series A Obligations) executed by the
Guarantors and the Agent on the Initial Closing Date;
"(ii) a Guaranty Agreement executed by such
Subsidiary substantially in the form of the Guaranty
Agreement (Lessee Obligations) executed by the
Guarantors (other than Aviation Sales) and the Lessor
on the Initial Closing Date;
"(iii) an opinion of outside counsel to such
Subsidiary (which counsel shall be acceptable to the
Agent) dated as of the date of delivery of the
Guaranty Agreements provided for in this SECTION
28.2(K) and addressed to the Agent, the Owner Trustee
and each of the Lenders, in form and substance
reasonably acceptable to the Agent (which opinion may
include assumptions and qualifications of similar
effect to those contained in the opinion of counsel
delivered by Akerman Senterfitt & ▇▇▇▇▇▇, P.A. on the
Initial Closing Date (the "Initial ASE Opinion")),
including opinions with respect to such Subsidiary
and each such Guaranty Agreement that are
substantively identical to the opinions set forth in
paragraphs 2, 3, 4, 5(a), 5(b), 5(c), 5(d), 5(e),
5(f) and 6 (on pages 5-7) of the Initial ASE Opinion;
"(iv) a certificate of the Secretary or an
Assistant Secretary of such Subsidiary in the form
attached as EXHIBIT E to the Participation Agreement
or in such other form as is reasonably acceptable to
the Agent attaching and certifying as to (A) the
resolutions of the Board of Directors (or, as
applicable, the partners, members or other equivalent
governing body) of such Subsidiary duly authorizing
the execution, delivery and performance by such
Subsidiary of each of the Operative Agreements to
which it is or will be a party, (B) its certificate
of incorporation (or other equivalent charter or
organizational documents), in each case certified as
of a recent date by the Secretary of State of the
State of its incorporation (or organization), (C) its
bylaws (or other equivalent documents relating to the
operation, governance or management of such
Subsidiary, and (D) the incumbency and signature of
persons authorized to execute and deliver on its
behalf the Operative Agreements to which it is a
party; and
"(v) a good standing certificate from the
appropriate officer of its state of incorporation (or
organization) and each state in which it is required
to be qualified to do business as to its good
standing in such state."
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"(j) AVAILABILITY UNDER REVOLVING CREDIT FACILITY. The
Borrower shall at all times (until the Letter of Credit in the amount
of $12,000,000 is issued and delivered to the Agent in accordance with
Section 10.1(h) of the Participation Agreement) maintain at least
$4,004,800 of unused availability under the revolving credit facility
established by the Existing Aviation Sales Credit Agreement, as
amended."
(b) Section 28.3(a) of the Lease is amended by deleting the
word "and" at the end of subparagraph (i), deleting the period at the
end of subparagraph (ii), inserting in place of such period a
semi-colon followed by the word "and", and adding the following
subparagraph (iii) at the end of such Section:
"(iii) Indebtedness of the Lessee under unsecured
Accommodation Obligations of the Lessee that relate to
Indebtedness (the "Underlying Indebtedness") of its
Subsidiaries, PROVIDED that the Underlying Indebtedness of the
respective Subsidiaries (A) is permitted under SECTION 10.01
of the Existing Aviation Sales Credit Agreement and (B)
constitutes Indebtedness for borrowed money or Indebtedness
arising under Capital Leases or Operating Leases."
(c) The Lease is further amended by adding the following
Sections 28.5, 28.6 and 28.7 at the end of Article XVIII thereof:
"28.5 AMENDMENTS AND WAIVERS. Notwithstanding
anything contained in this Lease or any other Operative
Agreement to the contrary, no provision of Section 28.1, 28.2,
28.3 or 28.4 hereof may be amended, waived, discharged or
terminated except by an instrument in writing signed by the
Lessor and the Majority Lenders.
"28.6 ADDITIONAL COVENANTS. The covenants contained
in this Article XVIII are in addition to any covenants or
terms contained in any other provisions of this Lease or any
other Operative Agreement. Nothing contained in this Article
XVIII shall be deemed to limit the generality of any covenant
or term contained in any other provision of this Lease or any
Operative Agreement.
"28.7 DEFINITIONS. Capitalized terms used in this
Article XVIII (including Sections 28.1, 28.2, 28.3, 28.4,
28.5, 28.6 and 28.7 hereof) shall have the respective meanings
assigned thereto in Exhibit D to this Lease, or if not defined
therein, then the meanings otherwise assigned thereto in this
Lease, or if not defined therein, then the meanings assigned
thereto in the Participation Agreement. The definitions set
forth in Exhibit D hereto shall apply only to the provisions
of this Article XVIII, and shall not apply to any other
provisions of this Lease or any other Operative Agreement
(except to the extent such other provisions may refer to or
incorporate any provision of this Article XVIII).
(d) The Lease Agreement is further amended by adding the
Exhibit D to Lease Agreement that is attached hereto.
7. MOST FAVORABLE COVENANTS. The parties agree that, if any
Indebtedness (or any document evidencing any Indebtedness) to which Aviation
Sales or any of its Subsidiaries is a party
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contains any covenants (the "Other Covenants") which are more restrictive (in
any respect) on Aviation Sales or any Subsidiary (or more protective of any
lender or creditor relating to such Indebtedness) than the covenants contained
in Article XVIII of the Lease, then upon the request of the Agent, any such
Other Covenant shall be deemed to be added immediately to the covenants set
forth in Article XVIII, and the parties shall promptly take any action
(including without limitation executing and delivering any amendment to the
Lease) which the Agent may deem appropriate to add any such Other Covenant to
Article XVIII of the Lease.
8. TEMPORARY CAP ON GUARANTORS' OBLIGATIONS UNDER GUARANTY AGREEMENT
(SERIES A OBLIGATIONS). Prior to March 31, 2000, the Guarantors' Obligations of
each Guarantor under any Guaranty Agreement (Series A Obligations) shall be
limited to an amount (the "Series A Guaranty Cap") equal to $36,252, 056
principal amount of Borrower's Liabilities (as defined therein), plus interest
on such principal amount and related fees and expenses. At any time on or after
March 31, 2000, the Series A Guaranty Cap shall no longer be in effect, and this
Amendment Agreement shall no longer impose any limit on the Guarantors'
Obligations of any Guarantor under any Guaranty Agreement (Series A
Obligations).
9. RESTRICTION ON FUNDINGS. The parties agree that until the Agent
receives the Letter of Credit in the amount of $12,000,000 pursuant to Section
10.3(h)(i) of the Participation Agreement, neither the Owner Trustee nor the
Construction Agent may request or receive, and the Lenders and Holders shall not
be required to make, any Funding under the Operative Agreements (other than a
Funding the proceeds of which are used solely to pay Transaction Expenses in
connection with this Amendment Agreement).
10. AGREEMENT AND CONFIRMATION BY GUARANTORS. Each of the undersigned
Guarantors has joined in the execution of this Amendment Agreement for the
purpose of (i) agreeing to the amendments to the Participation Agreement, the
Credit Agreement, the Trust Agreements and other Operative Agreements 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).
11. REPRESENTATIONS AND WARRANTIES. The Lessee and the Construction
Agent hereby certify that:
(a) The representations and warranties made by the Lessee and
the Construction Agent in Section 7 (other than in Section 7.3(f)(i))
of the Participation Agreement are true on and as of the date hereof;
and the representations in warranties set forth in Section 7.3(f)(i) of
the Participation Agreement are true on and as of the date set forth in
such Section;
(b) (i) The audited consolidated financial statements of each
of the Construction Agent and the Lessee as at December 31, 1998,
copies of which have been furnished to the Agent and the Owner Trustee,
were prepared in accordance with GAAP and fairly present the financial
condition of each of the Construction Agent and the Lessee and their
Subsidiaries on a consolidated basis as of such date and their
consolidated results of operations for the fiscal year then ended and
(ii) the unaudited consolidated financial statements as at September
30, 1999, copies of which have been furnished to the Agent and
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the Owner Trustee, were prepared in accordance with GAAP (subject to
normal year-end adjustments) and fairly present the financial condition
of the Construction Agent and the Lessee and their Subsidiaries on a
consolidated basis as of such date and their consolidated results of
operations for the fiscal quarter then ended.
(c) There has been no material change in the condition,
financial or otherwise, of the Lessee or the Construction Agent since
the Initial Closing Date, other than changes in the ordinary course of
business, none of which has been a material adverse change;
(d) The business and properties of the Lessee and the
Construction Agent are not, and since the Initial Closing Date have not
been, adversely affected in any substantial way as the result of any
fire, explosion, earthquake, accident, strike, lockout, combination of
workmen, flood, embargo, riot, activities of armed forces, war or acts
of God or the public enemy, or cancellation or loss of any major
contracts;
(e) (Other than the "Standstill Events", as defined in the
Standstill, Waiver and Consent Letter dated February __, 2000, among
Aviation Sales, Bank of America and the Owner Trustee (the "Standstill
Letter")) no event has occurred and no condition exists which, upon the
consummation of the transaction contemplated hereby, constitutes a
Default or an Event of Default on the part of the Lessee or the
Construction Agent under the Participation Agreement or any other
Operative Agreement, either immediately or with the lapse of time or
the giving of notice, or both;
(f) Exhibit M attached to this Amendment Agreement identifies
each item of Equipment that has been or will be acquired by the Owner
Trustee (or the Construction Agent on behalf of the Owner Trustee);
(g) Aviation Sales has complied with all terms of the
Subordinated Notes (defined below) and the Note Indenture (defined
below), including without limitation having made the full payment on
the Senior Notes that was required on February 15, 2000. For the
purposes of this Section:
"Note Indenture" means the Indenture dated as of
February 17, 1998 by and among Aviation Sales, certain
guarantors and SunTrust Bank Central Florida, National
Association, as Trustee, as amended; and
"Subordinated Notes" means the 8-1/8% Senior
Subordinated Notes issued pursuant to the Note Indenture in an
original aggregate principal amount of $165,000,000 and all
additional Senior Subordinated Notes which may be issued
pursuant to the Note Indenture in an aggregate principal
amount of up to $85,000,000";
(h) The $43,000,000 initial Construction Budget attached
hereto as Exhibit K is adequate to ensure the Completion of the Miramar
Property (including all Improvements thereon) in accordance with the
Plans and Specifications prior to the Construction Period Termination
Date; and all of the budget amounts and categories set forth in such
Construction Budget are accurate and complete in all respects.
11
12. CONDITIONS PRECEDENT. The effectiveness of this Amendment Agreement
shall be subject to fulfillment of the following conditions precedent:
(a) The Agent shall have received on the date hereof, in form and
substance satisfactory to the Agent, the following:
(i) a fully-executed original of this Amendment Agreement and
replacement Notes and Holder Certificate, reflecting the amended
Commitments and Holder Commitment (in substitution for the Notes and
Holder Certificate previously issued to Bank of America);
(ii) a fully-executed amended and restated Mortgage Instrument
with respect to the Property in Miramar, Florida (the "Miramar
Property");
(iii) a fully-executed modification of the Memorandum of Lease
and Lease Supplement with respect to the Miramar Property;
(iv) a fully-executed notice of future advance with respect to
the Miramar Property;
(v) an endorsement to the title insurance policies with
respect to the Miramar Property, reflecting the amended documents and
the increased amounts of Commitments and Holder Commitments;
(vi) an opinion of outside counsel to the Lessee and the
Guarantors, addressed to the Agent, the Owner Trustee and the Lenders;
(vii) a certificate of the Secretary or an Assistant Secretary
of each of the Lessee and each Guarantor in such form as is reasonably
acceptable to the Agent attaching and certifying as to (A) the
resolutions of the Board of Directors of Lessee or such Guarantor (as
the case may be) duly authorizing the execution, delivery and
performance by Lessee or such Guarantor (as the case may be) of this
Amendment Agreement and each of the other Operative Agreements
delivered in connection with this Amendment Agreement to which such
Lessee or Guarantor is or will be a party, (B) the fact that neither
its certificate of incorporation nor its bylaws have been changed from
the versions that were certified and delivered to the Agent on the
Initial Closing Date (or if they have been changed, such certificate of
incorporation or by-laws certified as of a recent date by the Secretary
of State of the State of its incorporation), and (C) the incumbency and
signature of persons authorized to execute and deliver on its behalf
this Amendment Agreement and each of the other Operative Agreements
delivered in connection with this Amendment Agreement to which such
Lessee or Guarantor is a party;
(viii) payment by the Lessee of all fees required by that
certain letter agreement dated as of February 18, 2000 between the
Lessee and the Agent, and that certain invoice dated February __, 2000,
from Banc of America Securities LLC to Aviation Sales, and accepted by
▇▇▇▇ ▇. ▇▇▇▇▇, as Chairman of the Board, President and Chief Executive
Offficer of Aviation Sales;
12
(ix) evidence of an irrevocable written request by the Lessee
to Citibank that the Letter of Credit be increased to $12,000,000 by
March 1, 2000;
(x) a fully executed amendment to the Intercreditor Agreement;
(xi) a fully executed Standstill Letter, and the satisfaction
of the conditions to effectiveness of the Standstill Letter; and
(xii) any additional agreements, instruments or documents
which it may reasonably request in connection herewith;
(b) The correctness in all material respects on the date hereof of the
representations and warranties of the Owner Trustee, Construction Agent and the
Lessee contained herein and in each of the Operative Agreements; and
(c) No Default or Event of Default shall have occurred and be
continuing on the date hereof (except the Standstill Events).
13. RELEASE. Aviation Sales and its Subsidiaries acknowledge that they
have no existing defense, counterclaim, offset, cross-complaint, claim or demand
of any kind or nature whatsoever that can be asserted to reduce or eliminate all
or any part of their or the Owner Trustee's respective liability to pay or
perform any obligations pursuant to any of the Operative Agreements or any other
documents which evidence or secure any obligations owed under any Operative
Agreement. In consideration for the execution of this Amendment Agreement,
Aviation Sales and its Subsidiaries hereby release and forever discharge, Bank
of America, the Agent, the Lenders, the Holders and the Owner Trustee and all of
their respective officers, directors, employees, affiliates and agents
(collectively, the "Released Parties") from any and all actions, causes of
action, debts, dues, claims, demands, liabilities and obligations of every kind
and nature, both in law and in equity, known or unknown, now existing
(collectively, the "Release Claims"), which might be asserted against any of the
Released Parties. This Release applies to all matters arising out of or relating
to the Operative Agreements, any Property, any obligations due under any of the
Operative Agreements and this Amendment Agreement, commitment letters with
respect to other loan facilities, and the lending and borrowing relationships,
and (to the extent any Release Claims relating to such deposit relationships are
now known to Aviation Sales or any of its Subsidiaries) the deposit
relationships, between Aviation Sales or its Subsidiaries, and Bank of America,
the Agent, the Lenders, the Holders and the Owner Trustee, including the
administration, collateralization and funding thereof.
14. ENTIRE AGREEMENT. This Amendment Agreement sets forth the entire
understanding and agreement of the parties hereto in relation to the subject
matter hereof and supersedes any prior negotiations and agreements among the
parties relative to such subject matter. No promise, conditions, representation
or warranty, express or implied, not herein set forth shall bind any party
hereto, and no one of them has relied on any such promise, condition,
representation or warranty. Each of the parties hereto acknowledges that, except
as in this Amendment Agreement otherwise expressly stated, no representations,
warranties or commitments, express or implied, have been made by any other party
to the other. None of the terms or conditions of this Amendment Agreement may be
changed, modified, waived or canceled orally or otherwise, except by writing,
signed by all the
13
parties hereto, specifying such change, modification, waiver or cancellation of
such terms or conditions, or of any proceeding or succeeding breach thereof.
15. FULL FORCE AND EFFECT OF OPERATIVE AGREEMENTS. Except as hereby
specifically amended, modified or supplemented, the Participation Agreement, the
Lease, the Credit Agreement, the Trust Agreement, the Guaranty Agreements and
all of the other Operative Agreements are hereby confirmed and ratified in all
respects and shall remain in full force and effect according to their respective
terms.
16. COUNTERPARTS. This Amendment Agreement may be executed in one or
more counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
[Remainder of page intentionally left blank.]
14
IN WITNESS WHEREOF, the parties hereto have caused this Amendment
Agreement to be duly executed by their duly authorized officers, all as of the
day and year first above written.
AVIATION SALES COMPANY,
as Construction Agent
By:
--------------------------------------------
Name:
Title:
AVIATION SALES COMPANY,
as Lessee
By:
--------------------------------------------
Name:
Title:
FIRST SECURITY BANK, NATIONAL
ASSOCIATION,
not individually, except as
expressly stated under the Operative
Agreements, but solely as Owner
Trustee under the Aviation Sales
Trust 1998-1
By:
--------------------------------------------
Name:
Title:
BANK OF AMERICA, N.A., as a Holder and as a Lender
By:
--------------------------------------------
Name:
Title:
BANK OF AMERICA, N.A., as Administrative Agent
By:
--------------------------------------------
Name:
Title:
SIGNATURE PAGE 1 OF 3
JOINDER BY GUARANTORS
The undersigned Guarantors hereby join in and consent to this Amendment
Agreement.
AVIATION SALES COMPANY
AVIATION SALES MANUFACTURING COMPANY
AVIATION SALES PROPERTY MANAGEMENT CORP.
AVIATION SALES FINANCE COMPANY
TIMCO ENGINE CENTER, INC.
AVS/▇▇▇▇▇-▇▇▇▇▇ 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.
AVIATION SALES SPS I, INC.
By:
--------------------------------------------
Name:
Title:________ of each of the foregoing Guarantors
SIGNATURE PAGE 2 OF 3
AVSRE, L.P.
BY: AVIATION SALES PROPERTY MANAGEMENT CORP.,
ITS GENERAL PARTNER
By:
------------------------------------------
Name:
Title:
SIGNATURE PAGE 3 OF 3
