NINTH AMENDMENT AND AGREEMENT
NINTH AMENDMENT AND AGREEMENT, dated as of July 1, 1999 (this "Ninth
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Amendment"), to the Existing Credit Agreement (as hereinafter defined), by and
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between INTERNATIONAL AIRLINE SUPPORT GROUP, INC., a Delaware corporation (the
"Borrower"), and BNY FACTORING LLC, a New York limited liability company (the
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"Lender"), as successor in interest to BNY FINANCIAL CORPORATION ("BNYFC").
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RECITALS
The Borrower and BNYFC have entered into the Existing Credit Agreement,
pursuant to which the Lender is providing to the Borrower (i) a $13,000,000.00
revolving credit facility, (ii) a $3,000,000.00 term loan facility, (iii) a
$3,750,000.00 term loan facility, (iv) a $1,500,000.00 term loan facility, (v) a
$1,600,000.00 term loan facility, (vi) a $1,000,000.00 revolving credit facility
and (vii) a $2,000,000 letter of credit facility, all of which are secured by
accounts receivable, inventory and other collateral of the Borrower. The
Borrower has requested that the Lender provide an additional $5,500,000.00 term
loan facility (as more specifically defined below, the "Term Loan E Facility")
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for the acquisition of two Embraer EMB-120RT Brasilia aircraft (bearing
manufacturer's serial numbers 120.194 and 120.191, respectively) (the "Aircraft
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Acquisition"). Subject to the terms and conditions hereof, the Lender is
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willing to provide the Term Loan E Facility to the Borrower and to amend certain
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provisions of the Existing Credit Agreement in order to effectuate the
foregoing.
In consideration of the foregoing and of the mutual covenants and
undertakings herein contained, the parties hereto hereby agree that the Existing
Credit Agreement is amended as hereinafter provided.
ARTICLE I
Definitions
1. Definitions. (a) In addition to the definitions set forth in
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the heading and the recitals to this Ninth Amendment, the following definitions
shall apply to this Ninth Amendment:
"Agreement": means the Existing Credit Agreement as amended by this Ninth
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Amendment.
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"Aircraft Acquisition Documents" : the collective reference to (i) the Purchase
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and Sale Agreement made and entered into as of June 30, 1999 among Newcourt
Capital USA Inc. ("Newcourt"), First Security Bank, National Association, as
owner trustee (the "Owner Trustee") and Borrower, (ii) the Warranty Xxxx of Sale
given by the Owner Trustee to the Borrower in respect of the Term Loan &
Aircraft (as defined in Article III, Section 1 hereof), (iii) the Assignment and
Assumption Agreement dated as of June 30, 1999 between the Owner Trustee and the
Borrower, (iv) the Escrow Deposit Agreement dated as of June 30, 1999 between
[the Owner Trustee][Newcourt] and the Borrower and (v)the Consent and Agreement
dated as of June 30, 1999 between SkyWest and the Borrower.
"Existing Credit Agreement": means the Credit Agreement, dated as of September
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30, 1996, between the Borrower and BNYFC, as amended by the First Amendment,
Waiver and Agreement, dated as of March 24, 1997, between the Borrower and
BNYFC, the Second Amendment and Agreement, dated as of September 9, 1997,
between the Borrower and BNYFC, the Third Amendment and Agreement, dated as of
October 15, 1997, between the Borrower and BNYFC, the Fourth Amendment and
Agreement, dated as of February 2, 1998, between the Borrower and BNYFC, the
Fifth Amendment and Agreement, dated as of July 16, 1998, between the Borrower
and BNYFC, the Sixth Amendment and Agreement, dated as of May 30, 1998, between
the Borrower and BNYFC, the Seventh Amendment and Agreement, dated as of October
28, 1998, between the Borrower and BNYFC and the Eighth Amendment and Agreement,
dated as of December 8, 1998, between the Borrower and BNYFC, as the same may
have been further amended, supplemented or modified from time to time up to but
not including the effectiveness of this Ninth Amendment.
"Ninth Amendment Documents": this Ninth Amendment, the SkyWest Consent and
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Agreement (as defined in Article III, Section 1 hereof), the Term Loan E
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Aircraft Chattel Mortgages (as defined in Article III, Section 1 hereof), the
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SkyWest Aircraft Lease Supplement and Receipt (as defined in Article III,
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Section 1 hereof), the Term Note E (as defined in Article III, Section 1 hereof)
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and any other agreements, instruments and documents executed or delivered
pursuant to or in connection with this Ninth Amendment and the transactions
contemplated thereby.
(b) Unless otherwise indicated, capitalized terms that are used but not defined
herein shall have the meanings ascribed to them in the Existing Credit
Agreement.
ARTICLE II
Representations
1. Representations. (a) The Borrower hereby represents and
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warrants as follows:
(i) It (A) is duly organized, validly existing and in good standing under
the laws of the jurisdiction of its organization, (B) has the power and
authority, and the legal right, to own and operate its property, to lease the
property it operates as lessee and to conduct the business in which it is
currently engaged, (C) is duly qualified and in good standing under the laws of
each jurisdiction where its ownership, lease or operation of property or the
conduct of its business requires such qualification and (D) is in compliance
with all Requirements of Law except to the extent that the failure to comply
therewith reasonably could not, in the aggregate, be expected to have a Material
Adverse Effect.
(ii) It has the power and authority, and the legal right, to make, deliver and
perform this Ninth Amendment and the other Ninth Amendment Documents to which it
is a party and to borrow under the Agreement and has taken all necessary action
to authorize the borrowings on the terms and conditions of the Agreement and
this Ninth Amendment and to authorize the execution, delivery and performance of
the Ninth Amendment Documents to which it is a party. No consent or
authorization of, filing with, notice to or other act by or in respect of, any
Governmental Authority or any other Person is required in connection with the
borrowings under the Agreement or with the execution, delivery, performance,
validity or enforceability of the Ninth Amendment Documents to which it is a
party. Each Ninth Amendment Document to which the Borrower is a party has been
or will be duly executed and delivered on behalf of the Borrower. Each Ninth
Amendment Document to which the Borrower is a party when executed and delivered
will constitute a legal, valid and binding obligation of the Borrower,
enforceable against it in accordance with its terms, subject to the effects of
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and
other similar laws relating to or affecting creditors' rights generally, general
equitable principles (whether considered in a proceeding in equity or at law)
and an implied covenant of good faith and fair dealing.
(iii) The conditions contained in Article IV hereof have been satisfied.
(b) The Borrower represents that each of the Credit Documents is on the date
hereof in full force and effect.
ARTICLE III
Amendments to Existing Credit Agreement
1. Amendments to Section 1. (a) Section 1.1 of the Existing
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Credit Agreement is hereby amended by inserting the following new definitions
therein in alphabetical order:
"Aircraft Propeller": each aircraft propeller in which the Borrower may now
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have or in the future acquire an interest and any aircraft propeller substituted
therefor by a lessee pursuant to an Aircraft Lease, together in each case with
any and all Aircraft Parts incorporated or installed in or attached thereto and
any Aircraft Part removed therefrom until such time as a replacement part shall
be substituted therefor. Except as otherwise set forth herein, at such time as
an aircraft propeller shall be substituted by a lessee pursuant to an Aircraft
Lease, such replaced Aircraft Propeller shall cease to be an Aircraft Propeller
hereunder.
"Ninth Amendment": that certain Ninth Amendment and Agreement, dated as of July
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1, 1999, between the Borrower and the Lender.
"Ninth Amendment Documents": the Ninth Amendment, the SkyWest Consent and
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Agreement, the Term Loan E Aircraft Chattel Mortgages, Term Note E and any other
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agreements, instruments and documents executed or delivered pursuant to or in
connection with the Ninth Amendment and the transactions contemplated thereby.
"Ninth Amendment Effective Date": the date on which all of the conditions
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precedent to the effectiveness of the Ninth Amendment set forth in Article IV of
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the Ninth Amendment are first satisfied or waived.
"Sky West": means SkyWest Airlines, Inc., a Utah corporation.
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"Sky West Aircraft Lease Supplement and Receipt": the collective reference to
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the Equipment Schedule and the Certificate of Acceptance, each dated as of the
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date of its execution and delivery between First Security Bank, National
Association, predecessor in interest under the SkyWest Leases to Borrower, and
SkyWest.
"SkyWest Consent and Agreement": that certain Consent and Agreement, dated as of
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July ___, 1999, by and among SkyWest, the Borrower and the Lender, in respect of
the SkyWest Leases.
"SkyWest Leases": the collective reference to (i) that Amended and Restated
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Aircraft Lease Agreement (N269UE) dated as of December 9, 1998, between SkyWest
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and First Security Bank, National Association, as Owner Trustee, as lessor, as
supplemented by an Equipment Schedule dated December 9, 1998, between the
Company and SkyWest and by a Certificate of Acceptance dated December 9, 1998 by
SkyWest, as the same may hereafter be further amended, supplemented or modified
(ii) that Amended and Restated Aircraft Lease Agreement (N289UE) dated as of
December 9, 1998, between SkyWest and First Security Bank, National Association,
as Owner Trustee, as lessor, as supplemented by an Equipment Schedule dated
December 9, 1998, between the Company and SkyWest and by a Certificate of
Acceptance dated December 9, 1998 by SkyWest, as the same may hereafter be
further amended, supplemented or modified and the Sky West lease Supplement and
Receipt.
"Term Loan E": as defined in Section 2.3(f) (together with any advance made in
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connection with the substitution of a Term Loan E Aircraft, Term Loan E Aircraft
Engine or Term Loan E Aircraft Propeller pursuant to Section 2.5(e)).
"Term Loan E Aircraft": each Aircraft owned from time to time by the Borrower
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and listed as a Term Loan E Aircraft and described on Schedule I hereto, as the
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same may be amended or modified from time to time in accordance with this
Agreement.
"Term Loan E Aircraft Chattel Mortgages": the collective reference to each
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Aircraft Chattel Mortgage, dated as of July 1, 1999, from the Borrower to the
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Lender with respect to a Term Loan E Aircraft.
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"Term Loan E Aircraft Engine": each Aircraft Engine owned from time to time by
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the Borrower and listed as a Term Loan E Aircraft Engine and described on
Schedule I hereto, as the same may be amended or modified from time to time in
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accordance with this Agreement.
"Term Loan E Aircraft Propeller": each Aircraft Propeller owned from time to
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time by the Borrower and listed as a Term Loan E Aircraft Propeller and
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described on Schedule I hereto, as the same may be amended or modified from time
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to time in accordance with this Agreement.
"Term Loan E Borrowing Base": at any time, an amount equal to the lesser of (i)
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80% (or such other percentage as the Lender shall determine in its sole
discretion) of the Forced Liquidation Value, after deduction of any applicable
Collateral Reserves, at such time, of all Term Loan E Aircraft and (ii) the
purchase therefor price paid by the Borrower to SkyWest.
"Term Loan E Facility": at any time, the obligation of the Lender to make Term
----------------------
Loan E in accordance with the provisions of this Agreement, which shall not
exceed an amount equal to $5,500,000.00 minus the aggregate amount of repayments
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of principal then required to have been made in accordance with Schedule 2.3E.
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"Term Note E": a promissory note of the Borrower evidencing Term Loan E, in form
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and substance acceptable to the Lender.
(b) The definition of the term "Aircraft Engine" in Section 1.1 of the
Existing Credit Agreement is hereby deleted in its entirety and replaced by the
following:
""Aircraft Engine": shall mean each aircraft engine in which the Borrower
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may now have or in the future acquire an interest and any aircraft engine
substituted by a lessee pursuant to an Aircraft Lease, together in each case
with any and all Aircraft Parts incorporated or installed in or attached thereto
and any Aircraft Part removed therefrom until such time as a replacement part
shall be substituted therefor and in each case excluding any Aircraft Propellers
installed on or attached thereto. Except as otherwise set forth herein, at such
time as an aircraft engine shall be substituted by a lessee pursuant to an
Aircraft Lease, such replaced Aircraft Engine shall cease to be an Aircraft
Engine hereunder."
(c) The definition of the term "Aircraft Inventory" in Section 1.1 of
the Existing Credit Agreement is hereby deleted in its entirety and replaced by
the following:
""Aircraft Inventory": all Aircraft, Airframes, Aircraft Engines, Aircraft
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Propellers and Aircraft Parts of the Borrower other than any Approved Aircraft
and any Airframes, Aircraft Engines, Aircraft Propellers and Aircraft Parts
incorporated or installed in, attached to, or otherwise identified as being
related to or comprising part of an Approved Aircraft."
(d) The definition of the term "Aircraft Parts" in Section 1.1 of the
Existing Credit Agreement is hereby deleted in its entirety and replaced by the
following:
""Aircraft Parts": shall mean all appliances, components, parts,
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instruments, appurtenances, avionics, accessories, furnishings and other
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equipment of whatever nature (other than complete Aircraft Engines and complete
Aircraft Propellers), which are now or from time to time may be incorporated or
installed in or attached to an aircraft (including without limitation the
airframe of such aircraft, any related aircraft engines and aircraft propellers
and any related appliances, components, parts, instruments, appurtenances,
avionics, accessories, furnishings and other equipment of whatever nature).
Except as otherwise set forth in an Aircraft Lease, only at such time as a
replacement aircraft part shall be substituted for an Aircraft Part in
accordance with such Aircraft Lease, shall the Aircraft Part so replaced cease
to be an Aircraft Part hereunder."
(e) The definition of the term "Airframe" in Section 1.1 of the
Existing Credit Agreement is hereby deleted in its entirety and replaced by the
following:
""Airframe": each of the Aircraft, excluding any Aircraft Engines or
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engines and any Aircraft Propellers or propellers from time to time installed
thereon, but including any and all Aircraft Parts (except Aircraft Parts that
are incorporated or installed in or attached to any such Aircraft Engine,
engine, Aircraft Propellers, or propellers), so long as: (i) such included
Aircraft Parts shall be incorporated or installed in or attached to such
Aircraft (but not in or to any Aircraft Engines or Aircraft Propellers from time
to time installed thereon); or (ii) such included Aircraft Parts shall remain
identified or connected with such Aircraft in that they are subject to repair,
alteration or modification as provided in Sections 6.13 and 6.14 of this
Agreement."
(f) The definition of the term "Approved Aircraft" in Section 1.1 of
the Existing Credit Agreement is hereby deleted in its entirety and replaced by
the following:
""Approved Aircraft": means the collective reference to the Term Loan A
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Aircraft, the Term Loan A Aircraft Engines, the Term Loan B Aircraft, the Term
Loan B Aircraft Engines, the Term Loan C Aircraft, the Term Loan C Aircraft
Engines, the Term Loan D Aircraft, the Term Loan D Aircraft Engines, the Term
Loan E Aircraft, the Term Loan E Aircraft Engines and the Term Loan E Aircraft
Propellers."
(g) The definition of the term "Credit Documents" in Section 1.1 of the
Existing Credit Agreement is hereby deleted in its entirety and replaced by the
following:
""Credit Documents": this Agreement, the First Amendment, the Second
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Amendment, the Third Amendment, the Fourth Amendment, the Fifth Amendment, the
Sixth Amendment, the Seventh Amendment, the Eighth Amendment, the Ninth
Amendment, the Letter of Credit Documents, the Security Documents, each Consent
and Agreement, Term Note A, Term Note B, Term Note C, Term Note D, Term E Note,
any Revolver Note and any other documents, agreements or instruments executed
and delivered to the Lender pursuant to Section 6.11."
(h) The definition of "Revolver Reserve" in Section 1.1 of the Existing
Credit Agreement is hereby deleted in its entirety and replaced by the
following:
""Revolver Reserve": as of any date, an amount equal to the lesser of (i)
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the amount, if any, by which the sum determined in accordance with clause I of
the definition of Revolver Borrowing Base on such date exceeds the aggregate
outstanding Revolver Advances on such date and (ii) the amount, if any, by which
the sum of the Term Loan A Facility (without regard to any Term Loan A
borrowings made prior to or on such date) on such date, the Term Loan B Facility
(without regard to any Term Loan B borrowings made prior to or on such date) on
such date, the Term Loan C Facility (without regard to any Term Loan C
borrowings made prior to or on such date) on such date, the Term Loan D Facility
(without regard to any Term Loan D borrowings made prior to or on such date) on
such date and the Term Loan E Facility (without regard to any Term Loan E
borrowings made prior to or on such date) on such date exceeds the sum of the
Term Loan A Borrowing Base on such date, the Term Loan B Borrowing Base on such
date, the Term Loan C Borrowing Base on such date, the Term Loan D Borrowing
Base on such date and the Term Loan E Borrowing Base on such date."
(i) The definition of "Term Loan Borrowing Bases" in Section 1.1 of the
Existing Credit Agreement is hereby deleted in its entirety and replaced by the
following:
""Term Loan Borrowing Bases": the collective reference to the Term Loan A
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Borrowing Base, the Term Loan B Borrowing Base, the Term Loan C Borrowing Base,
the Term Loan D Borrowing Base and the Term Loan E Borrowing Base."
(j) The definition of "Term Loan Facilities" in Section 1.1 of the Existing
Credit Agreement is hereby deleted in its entirety and replaced by the
following:
""Term Loan Facilities": the collective reference to the Term Loan A
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Facility, the Term Loan B Facility, the Term Loan C Facility, the Term Loan D
Facility and the Term Loan E Facility."
(k) The definition of "Term Loans" in Section 1.1 of the Existing Credit
Agreement is hereby deleted in its entirety and replaced by the following:
""Term Loans": the collective reference to Term Loan A, Term Loan B, Term
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Loan C, Term Loan D and Term Loan E."
2. Amendments to Section 2.3. (a) Subsection (a) of Section
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2.3 of the Existing Credit Agreement is hereby amended by deleting the
parenthetical in the seventh line thereof in its entirety and replacing it with
the following: "(without regard to the Term Loan B Facility, the Term Loan B
Borrowing Base, the Term Loan C Facility, the Term Loan C Borrowing Base, the
Term Loan D Facility, the Term Loan D Borrowing Base, the Term Loan E Facility
and the Term Loan E Borrowing Base)".
(b) Section 2.3 of the Existing Credit Agreement is hereby amended by inserting
the following at the end of such Section:
"(f) Subject to the terms and conditions hereof, the Lender agrees to make
a term loan to the Borrower in one advance (such advance, together with any
advances made in connection with the substitution of Term Loan E Aircraft or
Term Loan E Aircraft Engines pursuant to Section 2.5(e) hereof, "Term Loan E")
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on the Ninth Amendment Effective Date in the principal amount of the lesser of
(a) the Term Loan E Facility on such date and (b) the Term Loan E Borrowing Base
on such date. Term Loan E shall be dated the Ninth Amendment Effective Date,
stated to mature in the installments and amounts payable on the dates set forth
in Schedule 2.3E hereto, and bear interest for the period from the Ninth
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Amendment Effective Date on the unpaid principal amount thereof at the
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applicable interest rates per annum specified in Section 3.1 it being understood
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and agreed that notwithstanding anything to the contrary in said Schedule 2.3E,
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if the Termination Date shall occur prior to the final maturity date set forth
therein, then all amounts owing under Term Loan E, including accrued interest,
shall become due and payable on such Termination Date. All payments of
principal thereof shall reduce the Term Loan E Facility on a dollar-for-dollar
basis."
3. Amendments to Section 2.5. Section 2.5 of the Existing Credit
--------------------------
Agreement is hereby amended by inserting the following at the end of such
Section:
"(e) At the request of the Borrower and after substitution of a Term Loan E
Aircraft, a Term Loan E Aircraft Engine or a Term Loan E Propeller (the
"Substitute Term Loan E Aircraft, Engine or Propeller") for a Term Loan E
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Aircraft, a Term Loan E Aircraft Engine or a Term Loan E Propeller which has
been sold or has suffered an Event of Loss within six months after repayment of
Term Loan E to the extent and as required by Section 3.3(d) hereof, the Lender
may make an advance in an amount equal to the least of (i) 80% (or such other
percentage as the Lender shall determine in its sole discretion) of the Forced
Liquidation Value of the Substitute Term Loan E Aircraft or Engine, less any
applicable Collateral Reserve, (ii) the amount, if any, by which (A)
$5,500,000.00 minus all repayments of principal made, or required to have been
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made on or prior to the date of such advance in accordance with Schedule 2.3E
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hereto exceeds (B) the outstanding principal balance of Term Loan E on such date
(prior to the making of such advance) and (iii) the purchase price paid by the
Borrower for the Substitute Term Loan E Aircraft, Engine or Propeller. Each
such advance, if any, shall be made in the sole and absolute discretion of the
Lender and shall be deemed to comprise part of Term Loan E for all purposes
hereunder and shall increase the Term Loan E Facility on a dollar-for-dollar
basis. From and after the making of such advance the outstanding principal
balance of Term Loan E shall include the amount of such advance, interest shall
be payable on such amount, and the amount of each remaining scheduled principal
repayment shall be increased by an amount equal to (x) the amount of such
advance times (y) a fraction the numerator of which is an amount equal to such
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scheduled principal repayment and the denominator of which is the aggregate
amount of all remaining scheduled principal repayments."
4. Amendments to Section 3.3. Paragraph (b) of Section 3.3 of the
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Existing Credit Agreement is hereby deleted in its entirety and replaced by the
following:
"(b) (i) If on any date on which a Borrowing Base Certificate is required
to be delivered pursuant to Section 6.2(c), the aggregate outstanding principal
amount of the Term Loans exceeds an amount equal to the sum of the Term Loan
Borrowing Bases and the Revolver Reserve, the Borrower shall immediately prepay
the Term Loans in an aggregate amount equal to the amount of such excess. The
amount of such payment shall reduce the Term Loan Facilities on a
dollar-for-dollar basis and shall be applied (A) first against the repayment of
Term Loan A to the extent that the outstanding principal amount of Term Loan A
exceeds the Term Loan A Borrowing Base, then against the repayment of Term Loan
B to the extent that the outstanding principal amount of Term Loan B exceeds the
Term Loan B Borrowing Base, then against the repayment of Term Loan C to the
extent that the outstanding principal amount of Term Loans C exceeds the Term
Loan C Borrowing Base, then against the repayment of Term Loan D to the extent
that the outstanding principal amount of Term Loans D exceeds the Term Loan D
Borrowing Base, and then against the repayment of Term Loan E to the extent that
the outstanding principal amount of Term Loans E exceeds the Term Loan E
Borrowing Base, and (B) in each such case, against scheduled repayments of
principal on a pro rata basis.
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(ii) Without in any way limiting the provisions of clause (i) of this Section
3.3(b), if at any time during the period commencing with and including month 25
and ending with and including month 35, in each case as set forth on Schedule
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2.3B hereto, the outstanding principal amount of Term Loan B exceeds the sum of
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(i) the Term Loan B Borrowing Base, (ii) the excess if any of the Term Loan A
Borrowing Base over the outstanding principal amount of Term Loan A, (iii) the
excess, if any, of the Term Loan C Borrowing Base over the outstanding principal
amount of Term Loan C, (iv) the excess, if any, of the Term Loan D Borrowing
Base over the outstanding principal amount of Term Loan D, and (v) the excess,
if any, of the Term Loan E Borrowing Base over the outstanding principal amount
of Term Loan E, the Borrower shall immediately prepay Term Loan B in an amount
equal to such deficiency.
(iii) Without in any way limiting the provisions of clause (i) of this Section
3.3(b), if at any time during the period commencing with and including month 22
and ending with and including month 26, in each case as set forth on Schedule
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2.3C hereto, the outstanding principal amount of Term Loan C exceeds the sum of
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(i) the Term Loan C Borrowing Base, (ii) the excess if any of the Term Loan A
Borrowing Base over the outstanding principal amount of Term Loan A, (iii) the
excess if any of the Term Loan B Borrowing Base over the outstanding principal
amount of Term Loan B, (iv) the excess if any of the Term Loan D Borrowing Base
over the outstanding principal amount of Term Loan D, and (v) the excess, if
any, of the Term Loan E Borrowing Base over the outstanding principal amount of
Term Loan E, the Borrower shall immediately prepay Term Loan C in an amount
equal to such deficiency.
(iv) Without in any way limiting the provisions of clause (i) of this Section
3.3(b), if at any time during the period commencing with and including month 22
and ending with and including month 26, in each case as set forth on Schedule
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2.3D hereto, the outstanding principal amount of Term Loan D exceeds the sum of
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(i) the Term Loan D Borrowing Base, (ii) the excess if any of the Term Loan A
Borrowing Base over the outstanding principal amount of Term Loan A, (iii) the
excess if any of the Term Loan B Borrowing Base over the outstanding principal
amount of Term Loan B, (iv) the excess if any of the Term Loan C Borrowing Base
over the outstanding principal amount of Term Loan C, and (v) the excess, if
any, of the Term Loan E Borrowing Base over the outstanding principal amount of
Term Loan E, the Borrower shall immediately prepay Term Loan D in an amount
equal to such deficiency."
5. Amendments to Section 3.5(g). Section 3.5(g) of the Existing
------------------------------
Credit Agreement is hereby deleted in its entirety and replaced by the
following:
"(g) The Borrower agrees that, upon the request of the Lender, the Borrower
will execute and deliver to the Lender (i) a promissory note of the Borrower
evidencing Term Loan A of the Lender, in form and substance acceptable to the
Lender ("Term Note A"), (ii) a promissory note of the Borrower evidencing Term
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Loan B of the Lender, in form and substance acceptable to the Lender ("Term Note
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B"), (iii) a promissory note of the Borrower evidencing Term Loan C of the
Lender, in form and substance acceptable to the Lender ("Term Note C"), (iv) a
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promissory note of the Borrower evidencing Term Loan D of the Lender, in form
and substance acceptable to the Lender ("Term Note D"), (v) a promissory note of
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the Borrower evidencing Term Loan E of the Lender, in form and substance
acceptable to the Lender ("Term Note E"), (vi) a promissory note of the Borrower
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evidencing the Revolver Advances of the Lender in form and substance acceptable
to the Lender (a "Revolver Note"), and/or (vii) a promissory note of the
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Borrower evidencing the Open Purchasing Revolver Advances of the Lender in form
and substance acceptable to the Lender (an "Open Purchasing Revolver Note")."
-----------------------------
6. Amendments to Section 6.2(c). Section 6.2(c) is hereby
-------------------------------
deleted in its entirety and replaced by the following:
"(c) prior to 2:00 p.m., New York City time on each Business Day, a
Borrowing Base Certificate showing the Revolver Borrowing Base, the Term Loan A
Borrowing Base, the Term Loan B Borrowing Base, the Term Loan C Borrowing Base
the Term Loan D Borrowing Base and the Term Loan E Borrowing Base and the Term
Loan F Borrowing Base (but only, (i) in the case of the Term Loan A Borrowing
Base, in connection with the delivery of the first such certificate hereunder
and in each case that the Term Loan A Borrowing Base changes from the amount
thereof most recently reported, (ii) in the case of the Term Loan B Borrowing
Base, in connection with the delivery of such certificate on the First Amendment
Effective Date and in each case that the Term Loan B Borrowing Base changes from
the amount thereof most recently reported, (iii) in the case of the Term Loan C
Borrowing Base, in connection with the delivery of such certificate on the
Second Amendment Effective Date and in each case that the Term Loan C Borrowing
Base changes from the amount thereof most recently reported, (iv) in the case of
the Term Loan D Borrowing Base, in connection with the delivery of such
certificate on the Third Amendment Effective Date and in each case that the Term
Loan D Borrowing Base changes from the amount thereof most recently reported,
and (v) in the case of the Term Loan E Borrowing Base, in connection with the
delivery of such certificate on the Ninth Amendment Effective Date and in each
case that the Term Loan E Borrowing Base changes from the amount thereof most
recently reported, in each case as of the immediately preceding Business Day,
certified as complete and correct by a Responsible Officer or any vice president
on behalf of the Borrower, which Borrowing Base Certificate shall disclose daily
updates of the amount of Eligible Accounts and Eligible Lease Payment
Receivables, weekly updates of the amount of Eligible Inventory and the Forced
Liquidation Value of Approved Aircraft when required;"
7. Amendments to Schedule I. Schedule I to the Existing Credit
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Agreement is hereby amended in its entirety to read as is set forth on Schedule
I hereto.
8. Amendments to Schedule 1.1. Schedule 1.1 to the Existing Credit
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Agreement is hereby amended in its entirety to read as is set forth on Schedule
1.1 hereto.
9. Amendments to Schedules 2.3A, 2.3B, 2.3C and 2.3D. Schedules
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2.3A, 2.3B, 2.3C and 2.3D are hereby amended to include Schedule 2.3E, which
shall read as is set forth on Schedule 2.3E hereto.
ARTICLE IV
Conditions to Effectiveness
This Ninth Amendment, and the modifications to the Credit Agreement
provided for herein, shall become effective on the date (the "Ninth Amendment
---------------
Effective Date") on which all of the following conditions have been (or are
-------------
concurrently being) satisfied:
--
1. Each of the Ninth Amendment Documents shall have been executed and
delivered by each party thereto.
2. The Lender shall have received executed legal opinions of Xxxxx
Xxxxxxxx & Xxxxxxx, LLP, special counsel to the Borrower, in form and substance
satisfactory to the Lender and taking into account this Ninth Amendment and the
matters contemplated hereby (including, without limitation, opinions with
respect to the validity of the Ninth Amendment Documents and the effectiveness
of UCC filings in each state where Collateral described therein is located).
Such legal opinion shall cover such matters incident to the transactions
contemplated by this Ninth Amendment and the other Ninth Amendment Documents as
the Lender may reasonably require.
3. The Lender shall have received the executed legal opinion of Xxxxx &
Xxxxxxx, special FAA counsel to the Borrower, in form and substance satisfactory
to the Lender taking into account this Ninth Amendment and the matters
contemplated hereby (including, without limitation, opinions as to the
effectiveness of the filing of the SkyWest Aircraft Leases with the FAA). Such
legal opinion shall cover such matters incident to the transactions contemplated
by this Ninth Amendment and the other Ninth Amendment Documents as the Lender
may reasonably require.
4. The Lender shall have received a copy, in form and substance
reasonably satisfactory to the Lender, of the corporate resolutions of the
Borrower, authorizing the Aircraft Acquisition and the execution, delivery and
performance of this Ninth Amendment and the other Ninth Amendment Documents to
which the Borrower is a party, certified by the Secretary or an Assistant
Secretary of the Borrower as of the Ninth Amendment Effective Date, which
certificates shall state that the resolutions or authorizations thereby
certified have not been amended, modified, revoked or rescinded as of the date
of such certificate.
5. The Lender shall have received a certificate of the Secretary or an
Assistant Secretary of the Borrower, dated the Ninth Amendment Effective Date,
as to the incumbency and signature of the officer(s) of the Borrower executing
each Ninth Amendment Document to which it is a party and any certificate or
other document to be delivered by it pursuant hereto, together with evidence of
the incumbency of such Secretary or Assistant Secretary.
6. The Lender shall have received true, correct and complete copies of
the Governing Documents of the Borrower, certified as of the Ninth Amendment
Effective Date, as true, correct and complete copies thereof by the Secretary or
an Assistant Secretary of the Borrower.
7. The Lender shall have received copies of certificates dated as of a
recent date from the Secretary of State or other appropriate authority of such
jurisdiction, evidencing the good standing of the Borrower in the State of its
organization and in each State where the ownership, lease or operation of
property or the conduct of business requires it to qualify as a foreign
corporation or other entity except where the failure to so qualify would not
have a Material Adverse Effect.
8. The Lender shall have received all chattel paper original copies of
the SkyWest Leases and all documents required to be delivered under Article
Three of the Term Loan E Aircraft Chattel Mortgages.
9. Each of the representations and warranties made by the Borrower in
or pursuant to the Credit Documents shall be true and correct in all material
respects on and as of the Ninth Amendment Effective Date as if made on and as of
such date (except to the extent the same relate to another, earlier date, in
which case they shall be true and correct in all material respects as of such
earlier date).
10. No Default or Event of Default shall have occurred and be continuing.
11. All corporate and other proceedings, and all documents, instruments and
other legal matters in connection with the transactions contemplated by the
Ninth Amendment Documents, the Existing Credit Agreement, the Credit Agreement
and the other Credit Documents shall be reasonably satisfactory in form and
substance to the Lender, and the Lender shall have received such other documents
in respect of any aspect or consequence of the transactions contemplated hereby
or thereby as it shall reasonably request.
12. The Lender shall have received a Borrowing Base Certificate showing the
Revolver Borrowing Base, the Term Loan A Borrowing Base, the Term Loan B
Borrowing Base, the Term Loan C Borrowing Base, the Term Loan D Borrowing Base
and the Term Loan E Borrowing Base, in each case as of the Business Day
immediately preceding the Ninth Amendment Effective Date, with appropriate
insertions and dated the Ninth Amendment Effective Date, satisfactory in form
and substance to the Lender, executed by a Responsible Officer or any Vice
President of the Borrower.
13. The Lender shall have received evidence in form and substance
satisfactory to it that all of the requirements of Section 6.6 of the Existing
Credit Agreement and Section 5(o) of the Borrower Security Agreement shall have
been satisfied with respect to the Term Loan E Aircraft.
14. The Lender shall have received evidence in form and substance
satisfactory to it that all filings, recordings, registrations and other
actions, including, without limitation, the filing of financing statements on
forms UCC-1, necessary or, in the opinion of the Lender, desirable to perfect
the Liens created by the Security Documents with respect to the Term Loan E
Aircraft shall have been completed.
15. The Borrower shall have acquired the Term Loan E Aircraft and all right
title and interest of the lessor in the SkyWest Aircraft Leases, in each case
free and clear of all Liens other than liens of SkyWest is responsible
thereunder, but only to the extent that such Liens are permissible thereunder.
16. The Lender shall have received each additional document, instrument,
legal opinion or item of information reasonably requested by the Lender,
including, without limitation, a copy of any debt instrument, security agreement
or other material contract to which the Borrower is be a party.
ARTICLE V.
Miscellaneous
1. Closing Fee; Payment of Expenses. (a) On the Ninth
------------------------------------
Amendment Effective Date, the Borrower shall pay to the Lender in immediately
available funds a fee equal to $30,000.00 (which shall be in addition to all
fees paid to the Lender prior to the execution and delivery of this Ninth
Amendment). The Lender is hereby authorized to withhold the amount of such fee
from the proceeds of Term Loan E.
(b) Without limiting its obligations under Section 9.5 of the Existing
Agreement, the Borrower agrees to pay or reimburse the Lender for all of its
reasonable costs and expenses incurred in connection with this Ninth Amendment
and the other Ninth Amendment Documents, including, without limitation, the
reasonable costs and expenses of Cadwalader, Xxxxxxxxxx & Xxxx, counsel to the
Lender and expressly acknowledge that their obligations hereunder constitute
"Obligations" within the meaning of the Existing Credit Agreement.
2. SkyWest Aircraft Lease Supplement and Receipt. Borrower hereby
--------------------------------------------------
agrees that that it shall deliver to the Lender an original executed copy of the
SkyWest Aircraft Lease Supplement and Receipt immediately upon its execution and
delivery by the Borrower and SkyWest.
3. No Other Amendments; Confirmation. Except as expressly amended,
------------------------------------
modified and supplemented hereby and by the documents related hereto, the
provisions of the Existing Credit Agreement and the other Credit Documents shall
remain in full force and effect.
4. Acknowledgment. The Borrower hereby acknowledges that (i) the
--------------
SkyWest Consent and Agreement constitutes a Consent and Agreement under the
Agreement, and (ii) each Term Loan E Aircraft Chattel Mortgage constitutes an
Aircraft Chattel Mortgage under the Agreement.
5. Affirmation by Borrower. The Borrower hereby consents to the
-------------------------
execution and delivery of this Ninth Amendment and each of the other Ninth
Amendment Documents to which Borrower is a party and reaffirms its obligations
under the Credit Documents.
6. Governing Law; Counterparts. (a) This Ninth Amendment and the
-----------------------------
rights and obligations of the parties hereto shall be governed by, and construed
and interpreted in accordance with, the laws of the State of New York.
(b) This Ninth Amendment may be executed by one or more of the parties
hereto on any number of separate counterparts, and all of said counterparts
taken together shall be deemed to constitute one and the same instrument. A set
of the counterparts of this Ninth Amendment signed by all the parties shall be
lodged with the Borrower and the Lender. This Ninth Amendment may be delivered
by facsimile transmission of the relevant signature pages hereof.
[SIGNATURE PAGE FOLLOWS ]
IN WITNESS WHEREOF, the parties hereto have caused this Ninth Amendment to be
duly executed and delivered as of the day and year first above written.
INTERNATIONAL AIRLINE SUPPORT GROUP, INC.
By ____________________________________
Name:
Title:
BNY FINANCIAL CORPORATION
By ____________________________________
Name:
Title:
-2-
NYLIB1\CWT\NYLIB1\386221.3
SCHEDULE I
-----------
APPROVED AIRCRAFT, APPROVED AIRCRAFT LEASES,
------------------------------------------------
PERMITTED JURISDICTIONS AND PERMITTED LESSEES
-------------------------------------------------
APPROVED AIRCRAFT:
------------------
TERM LOAN A AIRCRAFT:
-----------------------
Description Registration No. Manufacturer Serial No.
----------- ----------------- -------------------------
None N/A N/A
TERM LOAN A ENGINES
----------------------
Description Manufacturer Serial No.
----------- -------------------------
1. Xxxxx & Whitney JT8D-7 654823
2. Xxxxx & Xxxxxxx JT8D-9 653845
3. Xxxxx & Whitney JT8D-15 P702898
TERM LOAN B AIRCRAFT
-----------------------
Description Registration No. Manufacturer Serial No.
----------- ----------------- -------------------------
1. Boeing B-727-044F N94GS 18892
TERM LOAN B ENGINES
----------------------
Description Manufacturer Serial No.
----------- -------------------------
None N/A
------
TERM LOAN C AIRCRAFT
-----------------------
Description Registration No. Manufacturer Serial No.
----------- ----------------- -------------------------
None N/A N/A
TERM LOAN C ENGINES
----------------------
Description Manufacturer Serial No.
----------- -------------------------
1. Xxxxx & Xxxxxxx JT8D-15 P688643
TERM LOAN D AIRCRAFT
-----------------------
Description Registration No. Manufacturer Serial No.
----------- ----------------- -------------------------
TERM LOAN D ENGINES
----------------------
Description Manufacturer Serial No.
----------- -------------------------
1. Xxxxx & Whitney JT8D-15 P666704
TERM LOAN E AIRCRAFT
-----------------------
Description Registration No. Manufacturer Serial No.
----------- ----------------- -------------------------
1. Embraer EMB-120RT Brasilia N269UE 120.194
1. Embraer EMB-120RT Brasilia N593SW 120.191
TERM LOAN E ENGINES
----------------------
Description Manufacturer Serial No.
----------- -------------------------
1. Xxxxx & Xxxxxxx XX-118 PCE-115407
2. Xxxxx & Xxxxxxx XX-118 PCE-115179
3. Xxxxx & Xxxxxxx XX-118 PCE-115337
4. Xxxxx & Xxxxxxx XX-000 XXX-000000
XXXX LOAN E AIRCRAFT PROPELLERS
-----------------------------------
Description Manufacturer Serial No.
----------- -------------------------
1. Xxxxxxxx Standard 14RF-9 MFG-900412
2. Xxxxxxxx Standard 14RF-9 MFG-900413
3. Xxxxxxxx Standard 14RF-9 MFG-900511
4. Xxxxxxxx Standard 14RF-9 MFG-900508
PERMITTED JURISDICTIONS:
-----------------------
With respect to Approved Aircraft other than Term Loan C Aircraft and Term
---------------------------------------------------------------------------
Loan D Aircraft:
-----------------
Canada
United States of America (including the continental U.S. and Alaska, Hawaii
and the U.S. Virgin Islands)
United States of Mexico
With respect to Term Loan C Aircraft and Term Loan D Aircraft:
------------------------------------------------------------------------
Canada
Mexico
United States of America (including the continental U.S. and Alaska, Hawaii
and the U.S. Virgin Islands)
the Bahamas
Bermuda
Honduras
Guatemala
Belize
Costa Rica
Panama
Jamaica
Cayman Islands
Dominican Republic
Puerto Rico
British Virgin Islands
Turks and Caios Islands
Anguilla
Saint Xxxxxxx and Grenadines
Montserrat
Antigua and Barbuda
Guadeloupe
Dominica
Martinique
Barbados
Grenada
Aruba
Saint Lucia
Netherlands Antilles
Trinidad and Tobago
With respect to Eligible Accounts:
-------------------------------------
Canada
United States of America (including the continental U.S. and Alaska,
Hawaii and the U.S. Virgin Islands)
With respect to Eligible Lease Payment Receivables:
--------------------------------------------------------
Canada
United States of America (including the continental U.S. and Alaska, Hawaii
and the U.S. Virgin Islands)
United States of Mexico
APPROVED LEASES AND PERMITTED LESSEES:
-------------------------------------
1. Property subject to lease: (1) Boeing 727-031F Aircraft, (3) Xxxxx &
Xxxxxxx JT8D-7 engines and other related equipment.
Lessee: Xxxxx Worldwide Airlines, Inc.
Term: September 2, 1993 through January 22, 1999, plus one day for each
day that the Aircraft is undergoing the First "C" Check and work required to
comply with the "Aging Aircraft" service bulletins in accordance with Section
6(d) of the Lease.
Amount: $45,000 per month plus "D" check reserves of $75 per flight hour.
Sublessee: Xxxx International Airlines
2. Property subject to lease: (1) Boeing 727-031F Aircraft, (3) Xxxxx &
Whitney JT8D-7 engines and other related equipment.
Lessee: Xxxxx Worldwide Airlines, Inc.
Term: September 2, 1993 through February 1, 1999, plus one day for each
day that the Aircraft is undergoing the First "C" Check and work required to
comply with the "Aging Aircraft" service bulletins in accordance with Section
6(d) of the Lease.
Amount: $45,000 per month plus "D" check reserves of $75 per flight hour.
Sublessee: Xxxx International Airlines
3. Property subject to lease: (2) Xxxxx & Xxxxxxx JT8D-7B engines and other
related equipment.
Lessee: Express One International, Inc.
Term: April 25, 1998 through _____________ in accordance with Section
2.2 of the Lease.
Amount: $10,000 per engine per month plus $70 per operating cycle or hour
per engine (whichever is greater).
4. Property subject to lease: (1) Embraer EMB-120RT Brasilia Aircraft, (2)
Xxxxx & Xxxxxxx XX-118 engines and other related equipment.
Lessee: SkyWest Airline, Inc.
Term: *[December 9, 1999] through
Amount: *[December 9, 2004], subject to a three year renewal right of
SkyWest.
5. Property subject to lease: (1) Embraer EMB-120RT Brasilia Aircraft, (2)
Xxxxx & Xxxxxxx XX-118 engines and other related equipment.
Lessee: SkyWest Airline, Inc.
Term: *[December 9, 1999] through
Amount: *[December 9, 2004], subject to a three year renewal right of
SkyWest.
SCHEDULE 1.1
-------------
AIRCRAFT, AIRCRAFT ENGINES, AIRCRAFT PROPELLERS AND AIRCRAFT LEASES
-------------------------------------------------------------------
AIRCRAFT, AIRCRAFT ENGINES AND AIRCRAFT PROPELLERS:
-------------------------------------------------------
Description Registration No. Manufacturer Serial No.
----------- ----------------- -------------------------
1. Aircraft Engines:
-----------------
Xxxxx & Whitney JT8D engine 654823
2. Aircraft:
---------
Boeing 727-044F N94GS 18892
3. Aircraft Engines:
-----------------
Xxxxx & Xxxxxxx XX0X-0 000000
4. Aircraft Engines:
-----------------
Xxxxx & Whitney JT8D-15 P688643
Xxxxx & Xxxxxxx JT8D-15 P666704
Xxxxx & Whitney JT8D-15 P702898
5. Aircraft:
---------
Embraer EMB-120RT Brasilia N269UE 120.194
Aircraft Engines:
-----------------
Xxxxx & Xxxxxxx XX-000 XXX-000000
Xxxxx & Xxxxxxx XX-118 PCE-115179
Aircraft Propellers:
--------------------
Xxxxxxxx Standard 14RF-9 MFG-900511
Xxxxxxxx Standard 14RF-9 MFG-900179
6. Aircraft:
---------
Xxxxxxx XXX-000XX Xxxxxxxx X000XX 120.191
Aircraft Engines:
-----------------
Xxxxx & Xxxxxxx XX-000 XXX-000000
Xxxxx & Xxxxxxx XX-118 PCE-115435
Aircraft Propellers:
---------------------
Xxxxxxxx Standard 14RF-9 MFG-900412
Xxxxxxxx Standard 14RF-9 MFG-900413
AIRCRAFT LEASES:
----------------
1. Property subject to lease: (2) Xxxxx & Whitney JT8D-7B engines and other
related equipment.
Lessee: Express One International, Inc.
Term: April 25, 1998 through _____________ in accordance with Section
2.2 of the Lease.
Amount: $10,000 per engine per month plus $70 per operating cycle or hour
per engine (whichever is greater).
2. Property subject to lease: (1) Embraer EMB-120RT Brasilia Aircraft, (2)
Xxxxx & Xxxxxxx XX-118 engines and other related equipment.
Lessee: SkyWest Airline, Inc.
Term: December 9, 1998 through 5-year term, subject to one 3-year
renewal term at the option of Lessee.
Amount: $42,500 per month
3. Property subject to lease: (1) Embraer EMB-120RT Brasilia Aircraft, (2)
Xxxxx & Xxxxxxx XX-118 engines and other related equipment.
Lessee: SkyWest Airline, Inc.
Term: December 9, 1998 through 5-year term, subject to one 3-year
renewal term at the option of Lessee.
Amount: $42,500 per month
4. Property subject to lease: () Xxxxx & Whitney JT8D-7B engine and related
equipment.
Lessee: TEM Enterprises, Inc. d/b/a Casino Express Airlines
Term: July 8, 1999 through _____ in accordance with Section 2 of the
Lease
Amount: $22,000 per month plus a usage payment of $75 per flight hour or
cycle, whichever is greater, with a minimum of 100 per month (but not to exceed
$18,000 per month.
5. Property subject to lease: (2) Xxxxx & Xxxxxxx JT8D-7B engines and
related equipment.
Lessee: Investors Asset Holding Corp., not in its individual capacity but
solely for the benefit of Airfund II International Limited Partnership, a
Massachusetts limited partnership
Term: September 17, 1998 through ________, in accordance with Section 2
of the Lease
Amount: $41,000 per engine per month
SCHEDULE 2.3E
-------------
TERM LOAN E PRINCIPAL REPAYMENT SCHEDULE
----------------------------------------
PRINCIPAL PRINCIPAL
PAYMENT DATE AMOUNT DUE
------------- -----------
July 31, 1999 $ 75,000.00
August 31, 1999 $ 75,000.00
September 30, 1999 $ 75,000.00
October 31, 1999 $ 75,000.00
November 30, 1999 $ 75,000.00
December 31, 1999 $ 75,000.00
January 31, 2000 $ 75,000.00
February 29, 2000 $ 75,000.00
March 31, 2000 $ 75,000.00
April 30, 2000 $ 75,000.00
May 31, 2000 $ 75,000.00
June 30, 2000 $ 75,000.00
July 31, 2000 $ 75,000.00
August 31, 2000 $ 75,000.00
September 30, 2000 $ 75,000.00
October 31, 2000 $ 75,000.00
November 30, 2000 $ 75,000.00
December 31, 2000 $ 75,000.00
January 31, 2001 $ 75,000.00
February 28, 2001 $ 75,000.00
March 31, 2001 $ 75,000.00
April 30, 2001 $ 75,000.00
May 31, 2001 $ 75,000.00
June 30, 2001 $ 75,000.00
July 31, 2001 $ 75,000.00
August 31, 2001 $ 75,000.00
September 30, 2001 $ 75,000.00
October 31, 2001 $ 75,000.00
November 30, 2001 $ 75,000.00
December 31, 2001 $ 75,000.00
January 31, 2002 $ 75,000.00
February 28, 2002 $ 75,000.00
March 31, 2002 $ 75,000.00
April 30, 2002 $ 75,000.00
May 31, 2002 $ 75,000.00
June 30, 2002 $ 75,000.00
July 31, 2002 $ 75,000.00
August 31, 2002 $ 75,000.00
September 30, 2002 $ 75,000.00
October 31, 2002 $ 75,000.00
November 30, 2002 $ 75,000.00
December 31, 2002 $ 75,000.00
January 31, 2003 $ 75,000.00
February 28, 2003 $ 75,000.00
March 31, 2003 $ 75,000.00
April 30, 2003 $ 75,000.00
May 31, 2003 $ 75,000.00
June 30, 2003 $ 75,000.00
July 31, 2003 $1,900,000.00
Notwithstanding the foregoing, the entire principal amount together with accrued
and unpaid interest is due and payable on the Termination Date (as extended) if
the same shall occur on or prior to August 1, 2003.
