EXHIBIT 10.85
WAIVER AND CONSENT
April 19, 2002
TIMCO Aviation Services, Inc.
and Subsidiaries
000 Xxxxx Xxxx
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attn: Chief Financial Officer
Re: Fourth Amended and Restated Credit Agreement dated as of
May 31,2000, as amended (the "Credit Agreement")
Gentlemen:
Reference is made to the Credit Agreement and all capitalized terms
used herein which are defined in the Credit Agreement shall have the meanings
herein as therein assigned.
Waiver
Pursuant to the terms of the Credit Agreement, Events of Default have
occurred (i) under Sections 12.01 (e)(ii) and (q) in connection with the payment
of the Parent's obligations for interest payments under the Senior Subordinated
Notes having due dates of August 15, 2001 and February 15, 2002 and (ii)
resulting from the failure to deliver (a) the Financial Statements for the
Fiscal Year ended December 31, 2001, together with related certificates,
accountants' statements and reports and other documents required under the
Credit Agreement as and when required pursuant to the terms thereof, including,
without limitation, an unqualified opinion of Xxxxxx's independent accountants
and (b) notice of delay of filing of Parent's annual report with the Commission
within 90 days after December 31, 2001, and good faith estimate of the required
information within 105 days after December 31, 2001. The Borrowers have
requested a waiver from the Requisite Lenders, the Issuing Bank, and Citicorp
USA, Inc., as holder of the Supplemental Term Loan Note (the "Term Note
Holder"), in connection with the foregoing.
Consent
Parent and the Borrowers have further requested the consent of the
Requisite Lenders to an amendment of the TROL Documents on the terms and
conditions attached hereto as Exhibit A (the "TROL Amendment").
The Lenders signatory hereto, comprising at least the Requisite
Lenders, the Issuing Bank, and the Term Note Holder hereby waive the rights and
remedies with respect to the aforesaid Events of Default otherwise available to
them under the Credit Agreement and Supplemental Term Loan Note, and such
Lenders hereby consent to the TROL Amendment, in each instance, expressly
subject to the satisfaction of the following conditions:
(1) obligees under the TROL Documents shall have waived their
rights and remedies under the TROL Documents with respect to defaults
comparable to those identified above occurring under the TROL Documents
and a copy of such waiver shall have been delivered to the Agent;
(2) no other consents, approvals or waivers with respect to
the agreements entered into in connection with the above-described
Events of Default, which have not been obtained, shall be required
under the terms of the Borrowers' and Guarantors' respective material
Contractual Obligations;
(3) the Term Note Holder, the Lenders constituting at least
the Requisite Lenders, the Issuing Bank, the Borrowers and Guarantors
shall have executed and delivered this letter to the Agent;
(4) the Borrowers shall have paid to the Agent, for the
account of the Lenders executing this Waiver and Consent on or before
April 19, 2002, a fee in the amount of $93,750, which fee shall be
fully earned upon this Waiver becoming effective and shall be for the
account of such Lenders in accordance with their Pro Rata Shares, with
the remaining balance, if any, being for the account of the Agent;
(5) the Borrowers and Guarantors shall have executed and
delivered to the Agent, for the benefit of the Term Note Holder, the
Lenders, Issuing Bank and other Holders, a release agreement in the
form attached hereto as Exhibit B;
(6) an opinion of counsel to the Borrowers and Guarantors
shall have been delivered to the Agent, Lenders and Term Note Holder
with respect to non-contravention of the TROL Documents, the BofA Note,
and agreements under which the Senior Subordinated Notes and Parent's
8% senior subordinated convertible PIK notes due 2006 have been issued,
this Waiver and Consent letter, such release agreement and all
instruments and documents executed by the Borrowers and Guarantors in
connection herewith;
(7) the Borrowers shall have delivered to the Agent corporate
resolutions of the Parent, Borrowers and Guarantors authorizing the
execution and delivery of this Waiver and Consent, such release
agreement, and all instruments and documents required to be executed
and delivered in connection herewith;
(8) the Financial Statements of Parent and its Subsidiaries
for the Fiscal Year ending December 31, 2001 and accompanying
certificates, accountants' statements and other documents required
under the Credit Agreement with respect thereto shall have been
delivered to the Agent and Lenders by April 22, 2002, subject to
qualification only with respect to the "going concern" status of the
Parent and its Subsidiaries; and
(9) the Borrowers shall have reimbursed the Agent for
attorneys' fees and expenses incurred under statements dated March 27,
2002 and April 17, 2002 aggregating $23,956.79.
Except as expressly set forth above, (a) the execution and delivery of
this letter shall in no way affect any right, power or remedy of (i) the Agent,
Lenders or Issuing Banks
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with respect to any Event of Default or Potential Event of Default or constitute
a waiver of any provision of the Credit Agreement or any of the other Loan
Documents or (ii) the Term Note Holder, with respect to any Event of Default or
Potential Event of Default or constitute a waiver of any provision of the
Supplemental Term Loan Note, and (b) the Credit Agreement, the other Loan
Documents, the Supplemental Term Loan Note, and, in each instance, all other
documents, instructions, and agreements executed and/or delivered pursuant
thereto and in connection therewith shall remain in full force and effect and
are hereby ratified and confirmed.
This letter may be executed in one or more counterparts, each of which
shall be deemed an original and all of which shall constitute one and the same
document. Delivery of an executed counterpart of this letter by facsimile
transmission shall be effective as delivery of a manually executed counterpart
hereof.
THIS LETTER SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK.
Remainder of Page Intentionally Left Blank
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IN WITNESS WHEREOF, this letter has been duly executed and delivered as
of the day and year first written above.
CITICORP USA, INC. XXXXXX FINANCIAL, INC.
By By
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Name: Name:
Title: Title:
NATIONAL CITY COMMERCIAL SALOMON BROTHERS HOLDING
FINANCE, INC. COMPANY INC.
By By
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Name: Name:
Title: Title:
FIRST UNION COMMERCIAL BANK OF AMERICA, N.A.
CORPORATION
By By
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Name: Name:
Title: Title:
FIRSTAR BANK, N.A. ARK CLO 2000-I, LIMITED
By: Patriarch Partners, LLC, as
Collateral Manager
By By
---------------------------------- --------------------------------
Name: Name:
Title: Title:
THE INTERNATIONAL BANK OF TCS EUROPEAN INVESTMENTS INC.
MIAMI, N.A.
By By
---------------------------------- --------------------------------
Name: Name:
Title: Title:
AMSOUTH BANK CITIZENS BUSINESS CREDIT
COMPANY
By By
---------------------------------- --------------------------------
Name: Name:
Title: Title:
PNC BANK, NATIONAL ASSOCIATION CITIBANK, N.A., as Issuing Bank
By By
---------------------------------- --------------------------------
Name: Name:
Title: Title:
GOLDEN TREE HIGH YIELD PARTNERS TRAVELERS EUROPEAN INVESTORS LLC
L.P.
By By
---------------------------------- --------------------------------
Name: Name:
Title: Title:
CITICORP USA, INC., as NOMURA SPECIAL SITUATIONS
holder of the Supplemental Term Loan INVESTMENT TRUST
By Wilmington Trust Company, not in
its individual capacity but solely
as Owner Trustee
By By
---------------------------------- --------------------------------
Name: Name:
Title: Title:
The terms and conditions of the aforesaid letter are hereby acknowledged and
accepted by each of the Borrowers and Guarantors and each Borrower and Guarantor
hereby represents and warrants that no consents, approvals or waivers with
respect to the agreements entered into in connection with the above-referenced
matters, which have not been obtained, are required under the terms of the
Borrowers' and Guarantors' respective material Contractual Obligations.
AVIATION SALES DISTRIBUTION AEROCELL STRUCTURES, INC.
SERVICES COMPANY
By By
---------------------------------- --------------------------------
Name: Name:
Title: Title:
AVS/M-2, INC. WHITEHALL CORPORATION
(formerly Aviation/Xxxxx-Xxxxx
Machine Company)
By By
---------------------------------- --------------------------------
Name: Name:
Title: Title:
TRIAD INTERNATIONAL MAINTENANCE AVS/M-3, INC.
CORPORATION (formerly Apex Manufacturing, Inc.)
By By
---------------------------------- --------------------------------
Name: Name:
Title: Title:
AIRCRAFT INTERIOR DESIGN, INC. AVS/CAI, INC.
(formerly Caribe Aviation, Inc.)
By By
---------------------------------- --------------------------------
Name: Name:
Title: Title:
TIMCO AVIATION SERVICES, INC. AVIATION SALES LEASING COMPANY
(formerly Aviation Sales Company)
By By
---------------------------------- --------------------------------
Name: Name:
Title: Title:
TIMCO ENGINE CENTER, INC. AVS/M-1, INC.
(formerly Aviation Sales
Manufacturing Company)
By By
---------------------------------- --------------------------------
Name: Name:
Title: Title:
AERO HUSHKIT CORPORATION AVIATION SALES PROPERTY
MANAGEMENT CORP.
By By
---------------------------------- --------------------------------
Name: Name:
Title: Title:
AVIATION SALES FINANCE COMPANY HYDROSCIENCE, INC.
By By
---------------------------------- --------------------------------
Name: Name:
Title: Title:
TIMCO ENGINEERED SYSTEMS, INC. AVIATION SALES SPS I, INC.
By By
---------------------------------- --------------------------------
Name: Name:
Title: Title:
AVIATION SALES MAINTENANCE, REPAIR
& OVERHAUL COMPANY
By
----------------------------------
Name:
Title:
cc: Xxxxxx Xxxxxx Xxxxx & Xxxx
Xxxxxxx, Xxxxxxxxxx & Xxxxxx, P.A.
