EXHIBIT 10.6
Amendment and Consent Agreement No. 7 for
Lease Agreement and
Certain Other Operative Agreements
THIS AMENDMENT AND CONSENT AGREEMENT NO. 7 (this "Amendment Agreement")
is made and entered into as of the 14th of February, 2001, 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., successor to NationsBank, National Association ("Bank of
America"), as a Holder and as a Lender; BANK OF AMERICA, 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");
each of the Lenders party to the Credit Agreement (defined below)(the
"Lenders"); and each of the Guarantors party to the Guaranty Agreement (defined
below).
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 (as amended, 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 (as amended, 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 (as amended,
the "Trust Agreement"); and
WHEREAS, the Owner Trustee and the Lessee have entered into the Lease
Agreement dated as of December 17, 1998 (as amended, the "Lease" or "Lease
Agreement"); and
WHEREAS, Aviation Sales, Subsidiaries of Aviation Sales, and the Agent
have entered into the respective Guaranty Agreements (Series A Obligations)
dated as of December 17, 1998, February 18, 2000, March 31, 2000 or May 31,
2000, as the case may be, (collectively, the "Series A Guaranty Agreement"); and
the Subsidiaries of Aviation Sales and the Owner Trustee have entered into the
respective Guaranty Agreements (Lessee Obligations) dated as of December 17,
1998, February 18, 2000, March 31, 2000 or May 31, 2000, as the case may be,
(collectively, the "Lessee Guaranty Agreement", and collectively with the Series
A Guaranty Agreement and any other Guaranty Agreement (as defined in the
Participation Agreement), the "Guaranty Agreement" or "Guaranty"); and
WHEREAS, the Construction Agent and the Lessee have informed the Agent
and the Owner Trustee that in order to prevent an Event of Default under the
Lease Agreement, the Participation Agreement and other Operative Agreements,
certain covenants, including but not limited to financial covenants, must be
amended; and
WHEREAS, the parties hereto desire further to amend the Lease 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", "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. The Participation
Agreement is hereby amended, effective as of the date hereof, as follows:
(a) Appendix A to the Participation Agreement is amended
by adding each of the following definitions, in the appropriate
alphabetical order; each of the following definitions of any term
replaces any previous definition of such term that may have appeared in
the Participation Agreement or any other Operative Agreement.
"'Amendment No. 7' shall mean Amendment and Consent
Agreement No. 7 for Lease Agreement and certain other
Operative Agreements dated as of February 14, 2001, among the
Construction Agent, the Lessee, the Owner Trustee, the Agent,
the Holders and Lenders party thereto and the Guarantors party
thereto."
"'BofA Borrowers' shall mean Aviation Sales
Distribution Services Company, a Delaware corporation,
Aerocell Structures, Inc., an Arkansas corporation, AVS/M-2,
Inc., a Delaware corporation, Whitehall Corporation, a
Delaware corporation, Triad International Maintenance
Corporation, a Delaware corporation, AVS/M-3, Inc., an Arizona
corporation, Aircraft Interior Design, Inc., a Florida
corporation, Aviation Sales Leasing Company, a Delaware
corporation, Caribe Aviation, Inc., a Delaware corporation and
Timco Engine Center, Inc., a Delaware corporation."
"'BofA Intercreditor Agreement' shall mean that
certain Intercreditor Agreement dated as of February 14, 2001,
executed by the Agent, the Owner Trustee, the BofA Borrowers,
the BofA Guarantors, Citicorp USA, Inc., in its capacity as
Collateral Agent, and Bank of America, N.A., in its capacity
as lender under the BofA Note."
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"'BofA Guaranty' shall mean that certain Guaranty
dated as of February 14, 2001, executed by the BofA Guarantors
in favor of Bank of America, N.A."
"'BofA Guarantors' shall mean Aviation Sales Company,
A Delaware corporation, Aviation Sales Property Management
Corp., a Delaware corporation, Timco Engineered Systems, Inc.,
a Delaware corporation, Aviation Sales Finance Company, a
Delaware corporation, Aviation Sales SPS I, Inc., a Delaware
Corporation, AVSRE, L.P., a Delaware corporation,
Hydroscience, Inc., a Texas corporation, Aero Hushkit
Corporation, a Delaware corporation, Aviation Sales
Maintenance, Repair & Overhaul Company, a Delaware
corporation, and AVS/M-1, Inc., a Delaware corporation."
"'BofA Note' shall mean that certain Term Loan Note
dated as of February 14, 2001 in the principal amount of
$10,000,000 executed by the BofA Borrowers and payable to Bank
of America, N.A."
3. 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 28.3.1 of the Lease is amended in
its entirety, so that as amended it shall read as
follows:
"28.3.1 Indebtedness. Aviation Sales shall
not, nor shall it permit any of its Subsidiaries to,
directly or indirectly create, incur, assume or
otherwise become or remain directly or indirectly
liable with respect to any Indebtedness, except:
"(a) the obligations under the Operative
Agreements;
"(b) Indebtedness permitted by Section
10.01 of the Existing Aviation
Sales Credit Agreement; and
"(c) Indebtedness of not more than
$10,000,000 evidenced by the BofA
Note."
(b) Section 28.3.3 of the Lease is amended in
its entirety, so that as amended it shall read as
follows:
"28.3.3 Liens. Without limiting the
generality of any other restriction of Liens on any
Property, neither Aviation Sales nor any Subsidiary
of Aviation Sales shall directly or indirectly
create, incur, assume or permit to exist any Lien on
or with respect to any of their respective Assets
(other than the Properties) except:
"(a) Liens created pursuant to the
Operative Agreements;
"(b) Liens permitted under Section 10.03
of the Existing Aviation Sales
Credit Agreement; and
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"(c) Liens on assets of the BofA Borrowers
and the BofA Guarantors (other than any TROL
Collateral (as defined in the BofA
Intercreditor Agreement)) which Liens secure
the BofA Note."
(c) Section 28.3.5 of the Lease is amended in
its entirety, so that as amended it shall read as
follows:
"28.3.5.Accommodation Obligations. Neither
Aviation Sales nor any Subsidiary of Aviation Sales
shall directly or indirectly create or become or be
liable with respect to any Accommodation Obligation,
except:
"(a) Accommodation Obligations arising
under the Operative Agreements; and
"(b) Accommodation Obligations permitted
under Section 10.05 of the Existing
Aviation Sales Credit Agreement;
and
"(c) Accommodation Obligations arising
under the BofA Note or the BofA
Guaranty.
"Neither Aviation Sales nor any Subsidiary of
Aviation Sales shall incur any Accommodation
Obligation with respect to Indebtedness of any
Subsidiary of Leasing."
(d) Section 28.3.14 of the Lease is amended in its
entirety, so that as amended it shall read as
follows:
"28.3.14Organizational Documents. Neither
Aviation Sales nor any Subsidiary of Aviation Sales
shall, nor shall Aviation Sales or any Subsidiary of
Aviation Sales permit any of its Subsidiaries to,
amend, modify or otherwise change any of the terms or
provisions in any of (a) its Organizational Documents
as in effect on the Effective Date, except amendments
(i) to effect a change of name of such Person,
written notice of which change of name such Person
shall have provided the Agent within sixty (60) days
prior to the effective date of any such name change
or (ii) otherwise consented to by the Agent in
writing, (b) the agreements and instruments
evidencing loans and advances comprising intercompany
loans without the prior written consent of the Agent,
(c) the Operative Agreements, the Citicorp Loan
Documents or agreements and instruments executed in
connection with the Senior Subordinated Notes or (d)
the BofA Note or the BofA Guaranty, or any documents
(including but not limited to that certain Second
Collateral Documents Amendment, dated as of the date
hereof, by and among Citicorp, the Citicorp Borrowers
and the BofA Borrowers (the "Second Collateral
Documents Amendment")) related thereto, without the
prior written consent of the Agent."
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(e) Section 28.3.4 of the Lease is amended in its
entirety, so that as amended it shall read as
follows:
"28.4 Financial Covenants. Aviation Sales covenants
and agrees that, until the obligations of the Lessee, the
Construction Agent and the Guarantors have been paid and
satisfied in full and the Operative Agreements have been
terminated in accordance with the terms thereof:
"28.4.1 Minimum Consolidated EBITDA.
Aviation Sales shall maintain Consolidated EBITDA,
determined as of the last day of each Fiscal Quarter
set forth below for the period then ending described
below, of at least the amount set forth below
opposite such date of determination:
Minimum Consolidated
--------------------
"Determination Date Applicable Period EBITDA
------------------ ----------------- --------------------
March 31, 2001 January 1, 2001-- March 31, 2001 $4,052,000
June 30, 2001 January 1, 2001-- June 30, 2001 $12,020,000
September 30, 2001 January 1, 2001-- September 30, 2001 $20,605,000
December 31, 2001 January 1, 2001-- December 31, 2001 $27,856,000
March 31, 2001 April 1, 2001-- March 31, 2002 $27,856,000
June 30, 2002 July 1, 2001-- June 30, 2002 $27,856,000"
"28.4.2 Capital Expenditures. Aviation Sales
and its Subsidiaries shall not make Capital
Expenditures in the aggregate during any period set
forth below in excess of the amount set forth below
opposite such period (in each instance, the "Maximum
Amount"):
"Determination Date Applicable Period Maximum Amount
------------------ ----------------- --------------
March 31, 2001 Fiscal Quarter then ending $1,799,000
June 30, 2001 Two Fiscal Quarter Period then ending $2,991,000
September 30, 2001 Three Fiscal Quarter Period then ending $4,183,000
December 31, 2001 Four-Quarter Period then ending $5,375,000
March 31, 2002 Four-Quarter Period then ending $5,375,000
June 30, 2002 Four-Quarter Period then ending $5,375,000"
"provided, however, to the extent Aviation Sales and
its Subsidiaries have not made Capital Expenditures
in the amount permitted above for any given period
set forth above, Capital Expenditures in an amount
equal to 100% of the Maximum Amount of such Capital
Expenditures permitted
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but not made in such period may be made in the
immediately next succeeding period in addition to any
amounts permitted above for such succeeding period;
provided that to the extent amounts carried forward
from one period to the next succeeding period are not
expended in such period, such surplus may not be
carried forward to any other succeeding period."
"28.4.3 Consolidated Fixed Charge Ratio.
Aviation Sales shall maintain a Consolidated Fixed
Charge Ratio for Aviation Sales and its Subsidiaries,
as determined as of the last day of each Fiscal
Quarter set forth below for the period then ending
described below, of at least the level set forth
below opposite such determination date:
"Determination Date Applicable Period Minimum Ratio
------------------ ----------------- -------------
March 31, 2001 Fiscal Quarter then ending 0.29 to 1.00
June 30, 2001 Two Fiscal Quarter Period then ending 0.89 to 1.00
September 30, 2001 Three Fiscal Quarter Period then ending 0.84 to 1.00
December 31, 2001 Four-Quarter Period then ending 1.02 to 1.00
March 31, 2002 Four-Quarter Period then ending 1.02 to 1.00
June 30, 2002 Four-Quarter Period then ending 1.02 to 1.00"
"28.4.4 Intentionally Deleted."
"28.4.5 Minimum Tangible Net Worth.
Aviation Sales shall maintain a Tangible Net Worth of
Aviation Sales and its Subsidiaries, of at least the
amount set forth below for the Fiscal Quarter ending
during the period set forth below opposite such
amount.
"Fiscal Quarter Ending Minimum Tangible Net Worth
--------------------- --------------------------
March 31, 2001 $8,208,000
June 30, 2001 $7,800,000
September 30, 2001 $8,544,000
December 31, 2001 $8,906,000
March 31, 2002 $8,906,000
June 30, 2002 $8,906,000"
"28.4.6 Intentionally Deleted."
"28.4.7 Intentionally Deleted."
4. 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 Lease Agreement, the
Participation Agreement and other Operative
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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).
5. Representations, Warranties and Covenants. The Lessee and the
Construction Agent hereby represent, warrant and covenant 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, 1999,
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, 2000, copies of which have been furnished to the Agent and 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. Neither Aviation Sales
nor any Guarantor or any Subsidiary of Aviation Sales has, as of the
date hereof, any Accommodation Obligation, contingent liability or
liability for any taxes, long-term leases or commitments, not disclosed
in writing to the Agent, the Lenders and the Holders prior to the date
hereof.
(c) The business and properties of the Lessee and the
Construction Agent and the Guarantors and the Subsidiaries of Aviation
Sales 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;
(d) No event has occurred and no condition exists which,
after giving effect to this Amendment Agreement, constitutes a Default
or an Event of Default on the part of the Lessee or the Construction
Agent or any Guarantor or any Subsidiary of Aviation Sales under the
Participation Agreement or any other Operative Agreement, either
immediately or with the lapse of time or the giving of notice, or both,
except as waived in accordance with Section 6 hereof. Since September
30, 2000, there has occurred no event with respect to the Lessee, the
Construction Agent or any Guarantor or any Subsidiary of Aviation Sales
which has resulted, or is reasonably likely to result, in a Material
Adverse Effect.
(e) There is no action, suit, proceeding, claim,
investigation or arbitration before or by any Governmental Authority or
private arbitrator pending or, to the
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knowledge of Aviation Sales, threatened against Aviation Sales, any
Guarantor or any Subsidiary of Aviation Sales or any of their
respective Assets (i) challenging the validity or the enforceability of
any of the Operative Agreements, (ii) which will, or is reasonably
likely to, result in any Material Adverse Effect, or (iii) under the
Racketeering Influenced and Corrupt Organizations Act or any similar
federal or state statute or law under any jurisdiction outside of the
United States where such Person is a defendant in a criminal indictment
that provides for the forfeiture of assets to any Governmental
Authority as a criminal penalty. There is no material loss contingency
within the meaning of GAAP which has not been reflected in the
Financial Statements of Aviation Sales and its Subsidiaries. Neither
Aviation Sales nor any Guarantor or any Subsidiary of Aviation Sales is
subject to or in default with respect to any final judgment, writ,
injunction, restraining order or order of any nature, decree, rule or
regulation of any court or Governmental Authority which will, or is
reasonably likely to, result in a Material Adverse Effect.
(f) The Lessee shall pay to the Agent, no later than
October 15, 2001, a restructuring fee in an amount equal to the product
of (i) one-half of one percent (0.5%) multiplied by (ii) the
outstanding Property Cost as of the date of such payment.
This Amendment Agreement shall be deemed to be an Operating Agreement
and any violation of a covenant contained herein shall be a violation of an
Operative Agreement.
6. Waiver and Consent. As of the date hereof:
(a) Subject to the Agent's receipt of the amendment
referenced in Section 7(viii) below, the Agent, the Owner Trustee, the
Lenders and the Holders hereby consent to the amendment of the Existing
Aviation Sales Credit Agreement on the terms and conditions referenced
on or attached hereto as Exhibit A and made a part hereof;
(b) The Agent, the Owner Trustee, the Lenders and the
Holders hereby waive all rights and remedies under the terms of the
Lease Agreement arising due to the occurrence of the Events of Default
identified on Exhibit B attached hereto and made a part hereof; and
(c) The Agent, the Owner Trustee, the Lenders and the
Holders hereby consent to the incurrence by the BofA Borrowers of the
indebtedness evidenced by the BofA Note, a copy of which is attached
hereto as Exhibit C and made a part hereof, and the obligations arising
under the BofA Guaranty, a copy of which is attached hereto as Exhibit
D and made a part hereof.
The waivers contained in this Section 6 are granted only for the
specific instances specified in Schedule B hereto and are not intended to create
a course of dealing or otherwise impair the future ability of the Lessor, the
Agent, any Lender or any Holder to declare a Lease Event of Default or any other
Event of Default or otherwise enforce the terms of any Operative Agreement. Such
waivers are not intended to be nor shall they be construed to be a general
waiver or alteration of any of the terms or conditions of any Operative
Agreement.
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7. Conditions Precedent. The effectiveness of this Amendment
Agreement, and any amendment, waiver or consent contained herein, 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;
(ii) an opinion of outside counsel to the Lessee
and the Guarantors, addressed to the Agent, the Owner Trustee
and the Lenders and Holders, including without limitation (A)
an opinion of such counsel with respect to noncontravention of
the Citicorp Loan Documents and agreements under which the
Senior Subordinated Notes have been issued, by this Amendment
Agreement, and the instruments and documents executed by the
Lessee, Construction Agent and Guarantors in connection
herewith, and (b) an opinion to the effect that the execution,
delivery and performance of this Amendment Agreement, the BofA
Note or the BofA Guaranty, will not affect the priority of any
Lien in favor of the Owner Trustee or the Agent (on behalf of
itself, any Lender or any Holder) that exists under the
Operative Agreements (which opinion may be included in the
opinion referred to in clause (ii) above);
(iii) 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; and
(iv) an executed BofA Intercreditor Agreement;
(v) an executed amendment and restatement of the
Existing Aviation Sales Credit Agreement, including the
consent of Citicorp to this Amendment Agreement and Amendment
No. 5 (as in effect prior to the effective date of this
Amendment Agreement) in form and substance satisfactory to the
Agent, Lenders and Holders;
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(vi) down-dating endorsements of the title
policies issued to the Owner Trustee and the Agent, with
respect to the Miramar Property, such endorsements reflecting
the transaction documents, as amended hereby, and showing no
additional exceptions to coverage, except as approved by the
Agent (in its sole discretion);
(vii) an executed copy of the BofA Note, the BofA
Guaranty, and the Second Collateral Documents Amendment;
(viii) 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;
(c) After giving effect to the waivers in Section 6 of
this Amendment Agreement, no Default or Event of Default shall have
occurred and be continuing on the date hereof;
(d) No material adverse change shall have occurred (as
certified to the Agent, the Lenders and the Holders by the respective
chief financial officers) in the business, assets, management,
operations, financial condition or prospects of Aviation Sales or any
Guarantor or any Subsidiary of Aviation Sales since September 30, 2000;
(e) Since September 30, 2000, no permit, agreement,
lease, or license which, in the judgment of the Agent, is material to
the business, operations or employee relations of Aviation Sales or any
Guarantor or any Subsidiary of Aviation Sales, including without
limitation, any agreement relating to the Existing Aviation Sales
Credit Agreement or the Senior Subordinated Notes (as defined in the
Existing Aviation Sales Credit Agreement), shall have been terminated,
modified, revoked, breached, or declared to be in default, or if
breached or declared to be in default during such period, such breach
or default shall have been cured or waived on terms satisfactory to the
Agent and Lenders;
(f) Lenders and Holders shall have reviewed all
litigation pending or threatened against Aviation Sales or any
Guarantor or any Subsidiary of Aviation Sales and determined to their
satisfaction that no Material Adverse Effect will, or is reasonably
likely to, result from the existence thereof; and
(g) None of the members of Aviation Sales' Board of
Directors as of September 30, 2000, shall have ceased acting as members
of such Board of Directors.
8. Release.
(a) 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
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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, each of Aviation Sales and each of its Subsidiaries hereby
releases and forever discharges, 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, whether
heretofore or now existing, liquidated or unliquidated, matured or
unmatured, fixed or contingent (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. Each of Aviation Sales and each
of its Subsidiaries further agrees not to bring any action in any
judicial, administrative or other proceeding against the Released
Parties, or any of them, alleging any such Release Claim or otherwise
arising in connection with any such Release Claim.
(b) It is the intent of the parties that except as
otherwise set forth herein, the foregoing release shall be effective as
a full and final accord and satisfaction of all claims hereby released
and each of Aviation Sales and each of its Subsidiaries hereby agrees,
represents and warrants that the matters released herein are not
limited to matters which are known or disclosed. In this connection,
each of Aviation Sales and each of its Subsidiaries hereby agrees,
represents and warrants that it realizes and acknowledges that factual
matters now existing and unknown to it may have given or may hereafter
give rise to Release Claims, which are presently unknown, unsuspected,
unliquidated, unmatured and/or contingent, and it further agrees,
represents and warrants that this release has been negotiated and
agreed upon in view of that realization. Nevertheless, Aviation Sales
and its Subsidiaries hereby intend to release, discharge and acquit the
Released Parties of and from any such unknown, unsuspected,
unliquidated, unmatured and/or contingent Release Claims, which are in
any way set forth in or related to the matters identified above in this
Section 8. Aviation Sales and its Subsidiaries hereby explicitly waive
the benefits of any common law or statutory rule with respect to the
release of such Release Claims.
(c) The acceptance and delivery of this Amendment
Agreement by the Agent on behalf of the Released Parties shall not be
deemed or construed as an admission of liability with respect to the
Release Claims or otherwise by the Released Parties, or any of them,
and the Released Parties hereby expressly deny liability of any nature
whatsoever arising from or related to the subject of the release
contained in this Section 8.
(d) Each of Aviation Sales and each of its Subsidiaries
hereby agrees, represents and warrants that: (i) such party has not
voluntarily, by operation of law or
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otherwise, assigned, conveyed, transferred or encumbered, either
directly or indirectly, in whole or in part, any right to or interest
in any of the Release Claims purported to be released by this Section
8; (ii) such party has had advice of counsel of its own choosing in
negotiations for and the preparation of this Amendment Agreement; and
(iii) such party is fully aware of the effect of releases such as that
contained in this Section 8.
9. 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 parties hereto, specifying such change, modification, waiver
or cancellation of such terms or conditions, or of any proceeding or succeeding
breach thereof.
10. Notice. Effective immediately, the notice address for the
Agent, the Lessee and the Guarantors, for the purposes of the Operative
Agreements, is as set forth below:
(a) If to the Agent or to Bank of America, N.A., as
Lender or Holder:
Bank of America, N.A.
FL-007-17-01
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxx, Xxxxxxx 00000-0000
Attn: Xxxxx X. Xxxxx, Xx.
Telecopier No.: (000) 000-0000
With all notices of request for Loans, Holder Fundings, or
conversion, continuation or prepayment of any Loan or Holder
Funding, be sent to:
Bank of America, N.A.
Independence Center, 15th Floor
NC1-001-15-04
Charlotte, North Carolina
Attention: Xxxxxxx Xxxxxxxxxx
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
(b) If to the Lessee or the Guarantors:
0000 Xxxxxxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
Attn: Chief Financial Officer
Telecopier No.: (000) 000-0000
12
With a copy to:
Akerman, Senterfitt & Xxxxxx, P.A.
Xxx Xxxxxxxxx Xxxxx Xxxxxx
00xx Xxxxx
Xxxxx, Xxxxxxx 00000-0000
Attn: Xxxxxx X. Xxxxxxxx
Telecopier No.: (000) 000-0000
Provided, however, that the failure to deliver such copy to
Akerman, Senterfitt & Xxxxxx, P.A. shall not affect the
validity of any notice otherwise delivered to Lessee or the
respective Guarantor at its address set forth herein.
11. Full Force and Effect of Operative Agreements. Except as
hereby specifically amended, modified or supplemented, the Participation
Agreement, the Lease 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.
12. 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.]
13
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: /s/ XXXXXXX X. XXXXX
--------------------------------------
Name: Xxxxxxx X. Xxxxx
------------------------------------
Title: CFO
-----------------------------------
AVIATION SALES COMPANY,
as Lessee
By: /s/ XXXXXXX X. XXXXX
--------------------------------------
Name: Xxxxxxx X. Xxxxx
------------------------------------
Title: CFO
-----------------------------------
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: /s/ XXXXX X. XXXX
--------------------------------------
Name: Xxxxx X. Xxxx
------------------------------------
Title: Vice President
-----------------------------------
BANK OF AMERICA, N.A., as a Holder and as
a Lender
By: /s/ XXXXX X. XXXXX, XX.
--------------------------------------
Name: Xxxxx X. Xxxxx, Xx.
------------------------------------
Title: Senior Vice President
-----------------------------------
BANK OF AMERICA, N.A., as Administrative
Agent
By: /s/ XXXXX X. XXXXX, XX.
--------------------------------------
Name: Xxxxx X. Xxxxx, Xx.
------------------------------------
Title: Senior Vice President
-----------------------------------
SIGNATURE PAGE 1 OF 3
JOINDER BY GUARANTORS
The undersigned Guarantors hereby join in and consent to this Amendment
Agreement.
AVIATION SALES COMPANY
AVS/M-1, INC. (formerly AVIATION SALES
MANUFACTURING COMPANY)
AVIATION SALES PROPERTY
MANAGEMENT CORP.
AVIATION SALES FINANCE COMPANY
TIMCO ENGINE CENTER, INC.
AVS/M-2, INC (formerly AVS/XXXXX-XXXXX
MACHINE COMPANY
AVS/M-3, INC. (formerly APEX
MANUFACTURING, INC.)
AEROCELL STRUCTURES, INC.
AVIATION SALES DISTRIBUTION
SERVICES COMPANY
AVIATION SALES BEARINGS COMPANY
AVIATION SALES LEASING COMPANY
WHITEHALL CORPORATION
TRIAD INTERNATIONAL MAINTENANCE
CORPORATION (successor in
interest to Aero Corporation and
Aero Corp Macon, Inc.)
AVIATION SALES MAINTENANCE, REPAIR &
OVERHAUL COMPANY
CARIBE AVIATION, INC.
AIRCRAFT INTERIOR DESIGN, INC.
AERO HUSHKIT CORPORATION
HYDROSCIENCE, INC.
TIMCO ENGINEERED SYSTEMS, INC.
By: /s/ XXXXXXX X. XXXXX
--------------------------------------
Name: Xxxxxxx X. Xxxxx
------------------------------------
Title: Vice President of each of the
foregoing Guarantors
-----------------------------------
AVSRE, L.P.
By: Aviation Sales Property Management
Corp., its general partner
By: /s/ XXXXXXX X. XXXXX
--------------------------------------
Name: Xxxxxxx X. Xxxxx
------------------------------------
Title: Vice President
-----------------------------------
SIGNATURE PAGE 2 OF 3
AVIATION SALES SPS I, INC.
By: /s/ XXXXXXX X. XXXXX
--------------------------------------
Name: Xxxxxxx X. Xxxxx
------------------------------------
Title: Vice President
-----------------------------------
SIGNATURE PAGE 3 OF 3
