EXHIBIT 10.117
AMENDED AND RESTATED SECURITY AGREEMENT
(Shareholder Security Agreement)
THIS AMENDED AND RESTATED SECURITY AGREEMENT (this "Agreement"), dated
as of March 31, 2004, is executed by and among AIRCRAFT INTERIOR DESIGN, INC., a
Florida corporation ("Design"), ▇▇▇▇▇ MANUFACTURING COMPANY, a California
corporation ("▇▇▇▇▇"), TIMCO ENGINE CENTER, INC., a Delaware corporation ("TIMCO
Engine"), TIMCO AVIATION SERVICES, INC., a Delaware corporation ("Parent"),
TIMCO ENGINEERED SYSTEMS, INC., a Delaware corporation ("Engineered Systems"),
and TRIAD INTERNATIONAL MAINTENANCE CORPORATION, a Delaware corporation
("TIMCO"; Design, ▇▇▇▇▇, ▇▇▇▇▇ Engine, Parent, Engineered Systems and TIMCO
being collectively called the "Borrowers" and individually, a "Borrower"),
AVIATION SALES DISTRIBUTION SERVICES COMPANY, a Delaware corporation
("Distribution"), AVIATION SALES LEASING COMPANY, a Delaware corporation
("Leasing"), AVIATION SALES PROPERTY MANAGEMENT CORP., a Delaware corporation
("Property Management"), AVS/CAI, INC., a Florida corporation ("Caribe"),
AVS/M-1, INC., a Delaware corporation ("Manufacturing"), AVS/M-2, INC., a
Delaware corporation ("▇▇▇▇▇-▇▇▇▇▇"), AVS/M-3, INC., a Delaware corporation
("Apex"), AVSRE, L.P., a Delaware limited partnership ("AVSRE"), HYDROSCIENCE,
INC., a Texas corporation ("Hydroscience"), TMAS/ASI, INC., an Arkansas
corporation ("TMAS"), and WHITEHALL CORPORATION, a Delaware corporation
(Whitehall, Distribution, Leasing, Property Management, Caribe, Manufacturing,
▇▇▇▇▇-▇▇▇▇▇, Apex, AVSRE, Hydroscience, TMAS and Whitehall being collectively
called the "Guarantors" and, individually, a "Guarantor"; and the Borrowers and
the Guarantors being collectively called the "Grantors" and individually a
"Grantor"), each having its chief executive office at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and LJH, LTD., a Texas limited partnership
("LJH", and also referred to as the "Secured Party"). Capitalized terms used but
not otherwise defined herein shall have the meanings ascribed to them in that
certain Financing Agreement, dated as of April 5, 2004 (as amended, the "Credit
Agreement"), among the Borrowers, the Guarantors, the institutions from time to
time party thereto as lenders, and The CIT Group/Business Credit, Inc., as
agent ("Agent").
W I T N E S S E T H:
WHEREAS, On October 11, 2002, LJH made a loan to Parent in the original
principal amount of $1,300,000 (such amount, together with accrued and unpaid
interest thereon, the "▇▇▇▇▇ Purchase Money Loan") to acquire all of the capital
stock and assets of ▇▇▇▇▇;
WHEREAS, on May 14, 2003, LJH extended credit to Parent in the original
principal amount of $900,000 (such amount, together with accrued and unpaid
interest thereon, the "Goodyear Inventory Purchase Money Loan") to acquire
certain inventory of LJH located in hangars 48 and 52, Phoenix Goodyear Airport
in Goodyear, Arizona as more particularly described on that certain ▇▇▇▇ of Sale
dated as of May ___, 2003;
WHEREAS, on May 14, 2003, LJH extended credit to Parent in the
aggregate amount of $6,050,000 to LJH the proceeds of which were used to
refinance certain indebtedness of the Borrowers and certain Guarantors to
Citibank USA, Inc. ("Credit Facility Refinancing Loan");
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WHEREAS, on January 30, 2004, LJH extended credit to Parent in the
aggregate principal amount of $5,000,000 the proceeds of which were used to
refinance certain indebtedness of the Borrowers and certain Guarantors to Bank
of America, N.A. ("Term Loan Refinancing Loan");
WHEREAS, in order to evidence the ▇▇▇▇▇ Purchase Money Loan, the
Goodyear Inventory Purchase Money Loan, the Credit Facility Refinancing Loan,
and the Term Loan Refinancing Loan, together with accrued and unpaid interest
thereon, the Parent has executed that certain Amended and Restated Consolidated
Term Promissory Note of even date herewith in favor of LJH in the principal
amount of $14,411,704.00, which amount may be increased pursuant to the
provisions thereof regarding compounding of interest (the "LJH Note");
WHEREAS, the Borrowers and the Guarantors (other than the Parent) have
executed that certain Amended and Restated Guaranty of even date herewith in
respect of the LJH Note (the "LJH Guaranty");
WHEREAS, the Secured Party has required in connection with the LJH Note
that the Grantors grant security interests in favor of the Secured Party in
order to secure the indebtedness of the Grantors under and with respect to the
LJH Note and the LJH Guaranty;
WHEREAS, the Grantors have heretofore entered into that certain
Security Agreement, dated as of May 14, 2003 (the "Predecessor Security
Agreement");
WHEREAS, the parties hereto desire to amend and restate in its entirety
the Predecessor Security Agreement upon the terms and conditions set forth
herein;
WHEREAS, the Grantors have agreed to grant the aforementioned security
interests in favor of the Secured Party in accordance with the terms and
conditions set forth below.
NOW, THEREFORE, in consideration of the premises set forth herein and
in order to induce LJH to continue the loans evidenced by the LJH Note, and for
other good and valuable consideration, the receipt and sufficiency of which is
hereby conclusively acknowledged, each Grantor hereby agrees with the Secured
Party, as follows:
SECTION 1. Grant of Security. Each Grantor hereby grants to the Secured
Party, as security for but subject to the limitations set forth in the last
paragraph of this Section 1, the indebtedness of the Grantors under the LJH Note
and the LJH Guaranty, and (i) all obligations of Grantor hereunder
(collectively, the "Obligations"), a third-priority security interest
(subordinate to the first priority security interest granted to the Agent and to
the second priority security interest granted to HILCO Capital LP) in all of
such Grantor's right, title and interest in and to all of its assets, including,
without limitation, the following, in each case whether now owned or existing or
hereafter acquired by it or arising and however and wherever arising or located
(the "Collateral"):
(a) Equipment;
(b) Inventory;
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(c) Accounts;
(d) General Intangibles;
(e) Documents of Title;
(f) Other Collateral;
(g) Real Estate;
(h) all property (real or personal) and interests in property of such
Grantor which may now be in or may hereafter come into the possession, custody
or control of the Secured Party, or any agent or affiliate of the Secured Party,
in any way or for any purpose (whether for safekeeping, deposit, custody,
pledge, transmission, collection or otherwise);
(i) all rights and interests of such Grantor in respect of any and all
(i) drafts, letters of credit, stocks, bonds, and debt and equity
Securities and Investment Property, whether or not certificated, and
warrants, options, puts and calls and other rights to acquire or otherwise
relating to the same, (ii) interest rate, currency exchange, and hedging
contract agreements, including, without limitation, cap, collar, floor,
forward and similar agreements and interest rate protection agreements,
(iii) cash and cash equivalents, and (iv) proceeds of loans, advances and
other financial accommodations, and all other personal property and
interests in personal property of such Grantor not specifically included in
Sections 1(a) through 1(h) above; and
(i) all accessions and additions to, substitutions and documents for,
and replacements, proceeds and products of any of the foregoing Collateral, and
all payments under insurance (whether or not the Secured Party is ] the loss
payee thereof), and any indemnity, warranty or guaranty, payable by reason of
loss or damage to or otherwise with respect to any of the foregoing Collateral,
to the extent not otherwise included (the items referred to in this clause (i)
collectively referenced to as "Proceeds").
Without limiting the generality of the foregoing, but subject to the
limitations set forth below, the liens and security interests granted in this
Agreement secure, without limitation, the payment of all amounts which
constitute part of the Obligations and would be owed by any Grantor to the
Secured Party, but for the fact that they are unenforceable or not allowable due
to the existence of a bankruptcy, reorganization or similar proceeding involving
such Grantor.
Notwithstanding anything herein to the contrary, it is expressly
understood and agreed that (i) only Collateral (and Proceeds thereof) purchased
with the proceeds of the ▇▇▇▇▇ Purchase Money Loan shall secure the repayment of
the ▇▇▇▇▇ Purchase Money Loan and related Transaction Expenses, Enforcement
Expenses and Indemnification Obligations (as such terms are defined with LJH
Note); and (ii) only Collateral (and Proceeds thereof) purchased with the
proceeds of the Goodyear Inventory Purchase Money Loan shall secure the
repayment of the Goodyear Inventory Purchase Money Loan and related Transaction
Expenses, Enforcement Expenses and Indemnification Obligations (as such terms
are defined in the LJH Note).
SECTION 2. Grantor Remains Liable. Anything herein to the contrary
notwithstanding, (a) each Grantor shall remain liable under the contracts and
agreements
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included in the Collateral to the extent set forth therein to perform all of its
duties and obligations thereunder to the same extent as if this Agreement had
not been executed, (b) the exercise by the Secured Party of any of the rights
hereunder shall not release any Grantor from any of its duties or obligations
under the contracts and agreements included in the Collateral, and (c) the
Secured Party shall not have any obligation or liability under the contracts and
agreements included in the Collateral by reason of this Agreement, nor shall the
Secured Party be obligated to perform any of the obligations or duties of any
Grantor thereunder or to take any action to collect or enforce any claim for
payment in which a security interest is granted hereunder.
SECTION 3. Representations and Warranties. Each Grantor represents and
warrants as follows with respect to itself and the Collateral pledged hereunder:
(a) All of its Inventory and Equipment is located at the places
specified on EXHIBIT A attached hereto and made a part hereof, except for
Inventory in transit and Inventory and Equipment at other locations for repair,
overhaul or modification, provided that Inventory and Equipment may be moved to
other locations in accordance with Section 5(a). All of its Inventory which is
imported from a location outside the United States arrives at one of the ports
or other locations identified on EXHIBIT A, if any. If any location of its
Inventory or Equipment is subject to a lease or license, or any sublease,
mortgage or similar instrument, the name and address of each licensor, lessor,
sublessor, mortgagor, lessee, licensee, sublessee and/or mortgagee (other than
such Grantor) is set forth on EXHIBIT A below the address of such location or on
a notice delivered to the Secured Party pursuant to Section 5(a). The name and
address of each bailee, processor, warehouseman, consignee or other Person in
possession of any of the Inventory or Equipment (each such Person being a
"Bailee") on the date hereof, other than carriers and shippers of Inventory in
transit and Inventory and Equipment at other locations for repair, overhaul or
modification, is set forth on EXHIBIT A, together with the address of the
location where such Inventory or Equipment is or may be held. Except as
otherwise indicated on EXHIBIT A, no Bailee (other than a Bailee identified on
EXHIBIT A as being a consignee or a Bailee in possession of its Inventory or
Equipment for purposes of repair, overhaul or modification) in possession of any
of the Inventory or Equipment conducts a business at the location of such
Inventory or Equipment other than a business in the nature of warehousing or
transporting goods for others. In the event that any of its Inventory is in the
possession of a Bailee, such Inventory shall not be evidenced by a negotiable
instrument or document.
(b) The principal place of business and chief executive office of each
Grantor are located at the address first specified above for each Grantor or at
such other address as a respective Grantor may designate in accordance with
Section 6, and all records concerning its Accounts are located at the addresses
specified on EXHIBIT B attached hereto and made a part hereof or at such other
addresses as any Grantor may designate in accordance with Section 6. Each
Grantor will hold and preserve such records and will permit representatives of
the Secured Party at any time to inspect, copy and make abstracts of such
records. The originals of all chattel paper that evidence Accounts have been
delivered to the Secured Party.
(c) Each Grantor has good, indefeasible and merchantable title to its
respective Collateral. Each Grantor is the legal and beneficial owner of its
respective Collateral free and clear of any Lien, except for the security
interest created by this Agreement and Liens permitted under Section 10.03 of
the Credit Agreement. Except as identified on EXHIBIT C attached hereto and made
a part hereof, no financing statement or other instrument similar in
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effect covering all or any part of the Collateral is on file in any recording
office on the date hereof, except such as may have been filed in favor of the
Agent and Hilco Capital LP relating to the Credit Agreement and the Hilco
Financing Agreement or in favor of the Secured Party relating to this Agreement
or such as may have been filed to perfect liens permitted under Section 7.9(a)
of the Credit Agreement.
(d) The correct name of each Grantor on the date hereof is that set
forth on the signature pages hereof and no Grantor has any other corporate or
fictitious name and has not, during the five (5) years immediately preceding the
date of this Agreement, (i) except as set forth on EXHIBIT D attached hereto and
made a part hereof, been known by or used any other corporate or fictitious name
in the ordinary course of its business; (ii) merged or consolidated with any
other Person which is or was known by or uses or used any other corporate,
partnership or fictitious name in the ordinary course of its business; or (iii)
except as set forth on EXHIBIT D, acquired assets from any other Person or
operating division thereof which is or was known by or uses or used any other
corporate, partnership or fictitious name to the extent that the transfer of
such assets by such Person or operating division is outside of the ordinary
course of such Person's or operating division's business. No Grantor will change
its name, identity or corporate structure in any manner unless it shall have
given the Secured Party the same notice required to be given to the Agent as
described in Section 10.14 of the Credit Agreement and certified to the Secured
Party that all filings reflecting such new name, identity or corporate structure
have been made which are necessary or appropriate to preserve the perfection of
the security interests described herein.
(e) This Agreement, together with the financing statements listed on
EXHIBIT E attached hereto and made a part hereof filed in the jurisdictions
identified on EXHIBIT E, upon the giving of value for the benefit of the
Grantors by the Secured Party, creates a valid and perfected third-priority
security interest in the Collateral (except for Collateral held by a Bailee for
purposes of repair, overhaul or modification), securing the payment and
performance of the Obligations, and all such filings and other actions necessary
or desirable to perfect and protect such security interest have been duly made
or taken.
(f) No consent of any other Person and no authorization, approval or
other action by, and no notice to or filing with, any Governmental Authority is
required (i) for the grant by any Grantor of the security interest granted
hereby or for the execution, delivery or performance of this Agreement by any
Grantor, (ii) for the perfection or, except for the filing of the appropriate
continuation statements with respect to the financing statements listed on
EXHIBIT E, maintenance of the security interest created hereby (including the
maintenance of the first priority nature of such security interest) or (iii) for
the exercise by the Secured Party of its rights and remedies hereunder.
SECTION 4. Further Assurances.
(a) Each Grantor agrees that from time to time, at the expense of such
Grantor, such Grantor will promptly execute and deliver all further instruments
and documents (including, without limitation, control agreements in form and
substance reasonably satisfactory to the Secured Party with respect to all
letter of credit rights, electronic chattel paper, deposit accounts, and
accounts with securities intermediaries), and take all further action which may
be necessary or desirable in the opinion of the Secured Party or its counsel, or
that the Secured Party
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may reasonably request, in order to perfect and protect any security interest
granted or purported to be granted hereby and enable the Secured Party to
exercise and enforce its rights and remedies hereunder with respect to any
Collateral, and such Grantor shall in any event take such action as may be
required to maintain the truthfulness and accuracy of the representations and
warranties contained in Section 3. Without limiting the generality of the
foregoing: (i) each Grantor shall ▇▇▇▇ conspicuously each "document," as defined
in Section 9-102(a)(30) of the Uniform Commercial Code of the state in which the
collateral is located or deemed located, included in the Inventory and each
chattel paper included in the Accounts and, at the request of the Secured Party,
each of its records pertaining to the Collateral with a legend, in form and
substance satisfactory to the Secured Party, indicating that such document,
chattel paper or other Collateral is subject to the security interest granted
hereby; (ii) in the event any Grantor acquires any Collateral with respect to
which a lien may be recorded with the Federal Aviation Administration or any
successor or replacement agency, such Grantor shall immediately notify the
Secured Party and such Grantor shall, at the request of the Secured Party,
promptly execute and deliver to the Secured Party, such notices, security
agreements and other documents as may be required (as determined by the Secured
Party in its sole discretion) to evidence, record and perfect the Secured
Party's Lien with respect to such Collateral; (iv) in the event that any Grantor
has accounts with respect to which the account debtor is the United States of
America or any department, agency or instrumentality thereof (all such accounts
being hereinafter referred to as "Government Accounts"), such Grantor shall, at
the request of the Secured Party, with respect to such Government Accounts,
promptly comply with the Assignment of Claims Act of 1940, as amended (31 U.S.C.
Section 3727 et seq.), and shall promptly deliver to the Secured Party evidence
of such compliance, which evidence shall be in form and substance satisfactory
to the Secured Party in its sole discretion; (v) each Grantor shall execute and
file such financing and continuation statements, and amendments thereto, and
such other instruments or notices, as may be necessary or desirable, or as the
Secured Party may request, in order to perfect and preserve the security
interest granted or purported to be granted hereby; and (vi) each Grantor shall
obtain and deliver to the Secured Party notices, agreements (including, without
limitation, subordination agreements) and other documents reasonably requested
by the Secured Party for the purpose of giving advice of and perfecting the
Liens granted to the Secured Party for its benefit and establishing the senior
priority, if any, of the Secured Party's security interest over such other
parties' rights and interests in respect of Equipment, Inventory or other
Collateral held in the possession of, Bailees, licensors, lessors, mortgagees or
other third parties, and shall use its best efforts to cause such third parties
(collectively, "Third Parties") to acknowledge or consent to such notices,
agreements and other documents.
(b) Each Grantor hereby authorizes the Secured Party to file one or
more financing and continuation statements, and amendments thereto, relating to
all or any part of the Collateral without the signature of such Grantor. Each
Grantor hereby agrees that a photocopy or other reproduction of this Agreement
or any financing statement covering the Collateral or any part thereof shall be
sufficient as a financing statement where permitted by law.
(c) Each Grantor hereby agrees that, upon the occurrence and during the
continuation of an Event of Default, the Grantor will not, without the prior
written consent of the Secured Party, except in the ordinary course of business
and for amounts which are not material to such Grantor in the aggregate, (i)
grant any extension of the time of payment of any of the Collateral or
compromise, compound or settle the same for less than the full amount thereof;
(ii) release, wholly or partly, any Person liable for the payment thereof; or
(iii) allow any
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credit or discount whatsoever thereon other than trade discounts granted in the
ordinary course of business.
(d) Each Grantor hereby agrees to advise the Secured Party promptly, in
reasonable detail, of (i) all material Liens and claims made by or asserted
against any or all of the Collateral (other than Liens listed on EXHIBIT C
hereto), and (ii) the occurrence of any other event which would have a material
adverse effect on the Secured Party's Liens on, or interest in, the Collateral
or would otherwise have a Material Adverse Effect.
SECTION 5. Covenants Regarding Equipment and Inventory.
(a) Each Grantor shall keep its Equipment and Inventory, except for
Inventory in transit and Inventory and Equipment at other locations for repair,
overhaul or modification, at the locations specified on EXHIBIT A or, provided
that ten (10) Business Days' prior written notice has been delivered to the
Secured Party, at such other places in jurisdictions where all actions required
by Section 4 shall have been taken with respect to such Equipment and Inventory.
(b) If any Equipment or Inventory is in the possession or control of
any Third Party or any of agent of a Grantor, such Grantor shall notify such
Third Party or agent of the Secured Party's security interest in such Equipment
or Inventory and, upon the request of the Secured Party following the occurrence
and during the continuation of an Event of Default, direct such Third Party or
agent to hold all such Equipment or Inventory for the Secured Party's account
and subject to the Secured Party's instructions.
SECTION 6. Covenants Regarding Accounts and General Intangibles. Each
Grantor shall keep its chief place of business and chief executive office and
the office where it keeps its records concerning the Accounts and the General
Intangibles at the location(s) specified on EXHIBIT B or, provided that thirty
(30) days' prior written notice has been delivered to the Secured Party, at any
other locations in a jurisdiction where all actions required by Section 4 shall
have been taken with respect to its Accounts and General Intangibles.
SECTION 7. Secured Party Appointed Attorney-in-Fact. Each Grantor
hereby irrevocably appoints the Secured Party as its attorney-in-fact, with full
authority in the place and stead of such Grantor and in the name of such Grantor
or otherwise, from time to time in the discretion of the Secured Party, to take
any action and to execute any instrument which the Secured Party may deem
necessary or advisable to accomplish the purposes of this Agreement, including,
without limitation, upon the occurrence and during the continuation of an Event
of Default:
(a) to ask, demand, collect, ▇▇▇ for, recover, compromise, receive and
give acquittance and receipts for moneys due and to become due under or in
connection with any of the Collateral;
(b) to receive, endorse, and collect any drafts or other instruments,
documents and chattel paper, in connection with clause (a) above;
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(c) to file any claims or take any action or institute any proceedings
which the Secured Party may deem necessary or desirable for the collection of
any of the Collateral or otherwise to enforce the rights of the Secured Party
with respect to any of the Collateral;
(d) to receive, open and dispose of all mail addressed to such Grantor;
and
(e) to take any other action necessary to operate such Grantor's
business.
(f) Each Grantor hereby ratifies all that such attorney-in-fact shall
lawfully do or cause to be done by virtue hereof. This power of attorney is
coupled with an interest and shall be irrevocable.
SECTION 8. Secured Party May Perform. If any Grantor fails to perform
any agreement contained herein, the Secured Party may itself perform, or cause
performance of, such agreement, and the expenses of the Secured Party incurred
in connection therewith shall be payable by such Grantor to the Secured Party
upon demand by the Secured Party.
SECTION 9. The Secured Party's Rights and Duties. The powers conferred
on the Secured Party hereunder are solely to protect its interest in the
Collateral and shall not impose any duty upon it to exercise any such powers.
Except for the safe custody of any Collateral in its possession and the
accounting for moneys actually received by it hereunder, the Secured Party shall
not have any duty as to any Collateral. Any action taken or omitted to be taken
by the Secured Party in connection with any of the Collateral shall not result
in any liability of the Secured Party to any Grantor unless such action or
omission shall be determined by a court of competent jurisdiction to have arisen
solely out of the gross negligence or willful misconduct of the Secured Party.
The Secured Party may exercise its rights and execute its duties hereunder by or
through agents or employees and shall be entitled to advice of counsel
concerning all matters pertaining to its rights and duties hereunder.
SECTION 10. Insurance and Insurance Proceeds.
(a) Each Grantor shall maintain in full force and effect the insurance
policies and programs listed on SCHEDULE 1 hereto or substantially similar
policies and programs or other policies and programs as are acceptable to the
Secured Party. All such policies and programs shall be maintained with insurers
acceptable to the Secured Party. Each certificate and policy relating to
Property damage, boiler and machinery and/or business interruption coverage
shall contain an endorsement, in form and substance acceptable to the Secured
Party, showing loss payable as their interests may appear to the Secured Party,
and naming the Secured Party as an additional insured under such policy. Each
certificate and policy relating to coverage other than the foregoing shall, if
required by the Secured Party, contain an endorsement naming the Secured Party
as an additional insured under such policy. Such endorsement or an independent
instrument furnished to the Secured Party shall provide that the insurance
companies will give the Secured Party at least thirty (30) days' written notice
before any such policy or policies of insurance shall be altered adversely to
the interests of the Secured Party or canceled and that no act, whether willful
or negligent, or default of any Grantor or any other Person shall affect the
right of the Secured Party to recover under such policy or policies of insurance
in case of loss or damage. In the event any Grantor at any time or times
hereafter shall fail to obtain or maintain any of the policies or insurance
required herein or to pay any premium in whole or in part
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relating thereto, then the Secured Party, without waiving or releasing any of
the Obligations, or resulting Event of Default, may at any time or times
thereafter (but shall be under no obligation to do so) obtain and maintain such
policies of insurance and pay such premiums and take any other action with
respect thereto which the Secured Party deems advisable. All sums so disbursed
by the Secured Party shall be part of the Obligations, secured by the terms of
this Agreement.
(b) Each Grantor hereby directs all insurers under policies of Property
damage, boiler and machinery and business interruption insurance relating to the
Property to pay all proceeds payable under such policies directly to the Secured
Party. In no case shall such proceeds be payable to any Grantor or any Grantor
and the Secured Party. Notwithstanding the foregoing, in the event proceeds of
insurance received by the Secured Party under property damage, boiler and
machinery policies or business interruption insurance policies (i) are less than
$500,000 or (ii) constitutes Replacement Proceeds, the Secured Party shall,
provided that no Potential Event of Default or Event of Default shall have
occurred and be continuing unwaived, upon receipt of such proceeds, remit the
amount so received to the applicable Grantor.
SECTION 11. Inspection of Property; Books and Records; Discussions.
Each Grantor shall permit any authorized representative(s) designated by the
Secured Party to visit and inspect, whether by access to such Grantor's MIS or
otherwise, any of the Property, to examine, audit, check and make copies of such
Grantor's financial and accounting records, books, journals, orders, receipts
and any correspondence (other than privileged correspondence with legal counsel)
and other data relating to its business or the transactions contemplated or
referenced in the Credit Agreement (including, without limitation, in connection
with environmental compliance, hazard or liability) and to discuss its affairs,
finances and accounts with its management personnel and independent certified
public accountants, all upon reasonable written notice and at such reasonable
times during normal business hours, as often as may be reasonably requested by
the Secured Party. Each such visitation and inspection shall be at such
Grantor's expense. Each Grantor shall keep and maintain in all material respects
on its MIS and otherwise proper books of record and account in which entries in
conformity with GAAP shall be made of all dealings and transactions in relation
to its business and activities, including, without limitation, transactions and
other dealings with respect to the Collateral. If an Event of Default has
occurred and is continuing and the Obligations have been accelerated pursuant to
Section 12.02(a) of the Credit Agreement, each Grantor, upon request by the
Secured Party in connection with efforts to enforce the rights and remedies of
the Secured Party in respect of the Obligations shall turn over any such records
to the Secured Party or its representatives; provided, however, that the
Grantors may, in their discretion, retain copies of such records.
SECTION 12. Remedies. Subject to the terms of the Intercreditor
Agreement (as defined below), if any Event of Default shall have occurred and be
continuing:
(a) The Secured Party may exercise in respect of the Collateral, in
addition to other rights and remedies provided for herein or otherwise available
to it, all the rights and remedies of a secured party upon default under the
Uniform Commercial Code in effect in the State of Florida at that time (the
"Uniform Commercial Code") (whether or not the Uniform Commercial Code applies
to the affected Collateral). The Secured Party also may (i) without notice,
demand or legal process of any kind, all of which each Grantor hereby waives to
the extent permitted by applicable law, at any time or times enter such
Grantor's premises and either
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(x) take physical possession of the Collateral and maintain such possession on
such Grantor's premises and continue the operation of such Grantor's business at
such premises, at no cost to the Secured Party, or (y) remove the Collateral or
any part thereof, to such other places as the Secured Party may desire, (ii)
require the Grantors to, and each Grantor hereby agrees that it will at its own
expense and upon request of the Secured Party forthwith, assemble all or part of
the Collateral as directed by the Secured Party and make it available to the
Secured Party at a place to be designated by the Secured Party which is
reasonably convenient to both parties, and (iii) without notice, except as
specified below, sell, lease, assign, grant an option or options to purchase or
otherwise dispose of the Collateral or any part thereof in one or more parcels
at public or private sale, at any of the Secured Party's offices or elsewhere,
for cash, on credit or for future delivery, and upon such other terms as the
Secured Party may deem commercially reasonable. The Secured Party agrees that it
will notify the applicable Grantor of the intended disposition of any of the
Collateral owned by it within a commercially reasonable time prior to such
intended disposition, the time of delivery of which notice the parties agree
shall in no event be required to be greater than five (5) Business Days. The
Secured Party shall not be obligated to make any sale of Collateral regardless
of notice of sale having been given. The Secured Party may adjourn any public or
private sale from time to time by announcement at the time and place fixed
therefor, and such sale may, without further notice, be made at the time and
place to which it was so adjourned. The Secured Party is hereby granted a
license or other right to use, without charge, the Grantors' trademarks,
registered trademarks, trademark applications, service marks, registered service
marks, service ▇▇▇▇ applications, patents, patent applications, trade names,
rights of use of any name, labels, fictitious names, inventions, designs, trade
secrets, computer programs, software, printouts and other computer materials,
goodwill, registrations, copyrights, copyright applications, permits, licenses,
franchises, customer lists, credit files, correspondence, and advertising
materials, and any Property of a similar nature, as it pertains to the
Collateral, or any rights to any of the foregoing, in completing production of,
advertising for sale, and selling any Collateral or in operating any Grantor's
business, and any Grantor's rights under all leases, licenses, consignment, and
franchise agreements shall inure to the Secured Party's benefit.
(b) TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH GRANTOR HEREBY
IRREVOCABLY WAIVES ALL RIGHTS TO NOTICE AND HEARING OF ANY KIND PRIOR TO THE
EXERCISE BY THE SECURED PARTY OF ITS RIGHTS TO (I) REPOSSESS THE COLLATERAL
WITHOUT JUDICIAL PROCESS OR (II) REPLEVY, ATTACH OR LEVY UPON SUCH COLLATERAL
WITHOUT PRIOR NOTICE OR HEARING.
(c) Any cash held by the Secured Party as Collateral and all cash
proceeds received by the Secured Party in respect of any sale of, collection
from, or other realization upon all or any part of the Collateral may, in the
discretion of the Secured Party, be held by the Secured Party as Cash Collateral
for, and/or then or at any time thereafter be applied in whole or in part by the
Secured Party for its benefit, all or any part of the Obligations, subject to
the provisions of the Credit Agreement and the Intercreditor Agreement (defined
below) governing such cash, proceeds, or other realization upon the Collateral
and the application thereof.
(d) The Secured Party shall have the right, upon notice to the
applicable Grantor of its intention to do so, to notify the account debtors or
obligors under any Accounts of the assignment of such Accounts to the Secured
Party and to direct such account debtors or obligors to make payment of all
amounts due or to become due to such Grantor thereunder
10
directly to the Secured Party and, upon such notification and at the expense of
such Grantor, to enforce collection of any such Accounts, and to adjust, settle
or compromise the amount or payment thereof, in the same manner and to the same
extent as such Grantor might have done. After receipt by any Grantor of the
notice from the Secured Party referred to in the preceding sentence, (i) all
amounts and proceeds (including instruments) received by such Grantor in respect
of such Accounts shall be received in trust for the benefit of the Secured Party
hereunder, shall be segregated from other funds of such Grantor and shall be
forthwith paid over to the Secured Party in the same form as so received (with
any necessary endorsement) to be held as Cash Collateral and shall be applied as
provided by Section 12(c) above, and (ii) no Grantor shall adjust, settle or
compromise the amount or payment of any Receivable, release wholly or partly any
account debtor or obligor thereof, or allow any credit or discount thereon. In
any suit, proceeding or action brought by the Secured Party under any account
comprising part of the Collateral, each Grantor will save, indemnify and keep
the Secured Party harmless from and against all expense, loss or damages
suffered by reason of any defense, setoff, counterclaim, recoupment or reduction
of liability whatsoever of the obligor thereunder, arising out of a breach by
any Grantor of any obligation or arising out of any other agreement,
Indebtedness or liability at any time owing to or in favor of such obligor or
its successors from any Grantor, and all such obligations of the Grantors shall
be and shall remain enforceable against and only against the Grantors and shall
not be enforceable against the Secured Party.
SECTION 13. Amendments, Etc. No amendment or waiver of any provision of
this Agreement, and no consent to any departure by any Grantor herefrom, shall
in any event be effective unless the same shall be in writing and signed by
parties hereto, and then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given.
SECTION 14. Notices, Etc. All notices and other communications provided
for hereunder shall be given in the manner set forth in the Credit Agreement to
the addresses provided by the parties to one another from time to time, except
that any notice provided by a Grantor to the Secured Party hereunder shall be
effective only upon receipt thereof by the Secured Party.
SECTION 15. Continuing Security Interest; Termination; Payments Set
Aside. This Agreement shall create a continuing security interest in the
Collateral and shall (i) remain in full force and effect until indefeasible
payment in full in cash of the Obligations to the extent secured hereby and the
Grantors' obligations with respect to the LJH Note and the LJH Guaranty are
terminated, in writing, by the Secured Party, (ii) be binding upon the Grantors
and the Secured Party, and their respective successors and assigns, and (iii)
inure to the benefit of, and be enforceable by, the Grantors, the Secured Party,
and their respective successors, transferees and assigns. Upon its indefeasible
payment in full in cash of the obligations secured hereby, the security interest
granted hereby shall terminate and all rights to the Collateral shall revert to
such Grantor. To the extent that any Grantor makes a payment or payments to the
Secured Party or the Secured Party enforces its security interests or exercises
its rights of set-off, and such payment or payments or the proceeds of such
enforcement or set-off or any part thereof are subsequently invalidated,
declared to be fraudulent or preferential, set aside and/or required to be
repaid to a trustee, receiver or any other party under any bankruptcy law, state
or federal law, common law or equitable cause, then, to the extent of such
recovery, the obligation or part thereof originally intended to be satisfied,
and all Liens, rights and remedies therefor, shall be
11
revived and continued in full force and effect as if such payment had not been
made or such enforcement or set-off had not occurred.
SECTION 16. Intercreditor Agreement; Subordination. Notwithstanding
anything in this Agreement to the contrary, the Secured Party acknowledges and
agrees that all of its rights and remedies in and to the Collateral shall be
subject in all respects to that certain Intercreditor Agreement of even date
herewith among the Secured Party, the Agent and Hilco Capital LP, (the
"CIT/Hilco Intercreditor Agreement"), and the Secured Party shall not take any
actions against the Collateral or any part thereof in contravention of the terms
of the CIT/Hilco Intercreditor Agreement.
SECTION 17. No Novation. This Agreement is not intended as, and shall
not be deemed, a novation of the Predecessor Security Agreement, and the liens
granted to the Secured Party under the Predecessor Security Agreement and this
Agreement shall be continuing liens having the same priority as that occasioned
by the Predecessor Security Agreement for the benefit of the Secured Party,
subject to the Intercreditor Agreement.
SECTION 18. Survival of Representations and Warranties. Each Grantor
covenants, warrants, and represents to the Secured Party that all
representations and warranties of the Grantors contained in this Agreement are
true at the time of the Grantors' execution of this Agreement, shall survive the
execution, delivery and acceptance hereof by the parties hereto and shall
continue in effect until all of the Obligations have been paid in full in cash
or otherwise terminated or cancelled.
SECTION 19. Governing Law; Terms; Severability.
(a) THIS AGREEMENT SHALL BE INTERPRETED, AND THE RIGHTS AND LIABILITIES
OF THE PARTIES HERETO, DETERMINED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
TEXAS, EXCEPT AS REQUIRED BY MANDATORY PROVISIONS OF LAW AND EXCEPT TO THE
EXTENT THAT THE VALIDITY OR PERFECTION OF THE SECURITY INTEREST HEREUNDER, OR
ANY OF THE REMEDIES HEREUNDER, IN RESPECT OF ANY PARTICULAR COLLATERAL, MAY BE
GOVERNED BY THE LAWS OF A JURISDICTION OTHER THAN THE STATE OF TEXAS.
(b) Unless otherwise defined herein or in the Credit Agreement, terms
used in Article 9 of the Uniform Commercial Code are used herein as therein
defined.
(c) If any provision of this Agreement shall be prohibited by or
invalid under applicable law, such provision shall be ineffective to the extent
of such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Agreement.
SECTION 20. No Waiver; Remedies. No failure on the part of the Secured
Party to exercise, and no delay in exercising, any right hereunder shall operate
as a waiver thereof; nor shall any single or partial exercise of any right
hereunder preclude any other or further exercise thereof or the exercise of any
other right. The remedies herein provided are cumulative and not exclusive of
any remedies provided by law.
SECTION 21. Marshalling; Recourse to Security. The Secured Party shall
not be under any obligation to ▇▇▇▇▇▇▇▇ any assets in favor of any Grantor or
any other party or against
12
or in payment of any or all of the Obligations. Recourse to security shall not
be required at any time.
SECTION 22. Construction.
(a) The works "hereof", "herein" and "hereunder" and words of like
import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement and section references are to
this Agreement unless otherwise specified.
(b) All terms defined in this Agreement in the singular shall have
comparable meanings when used in the plural, and vice versa, unless otherwise
specified.
(c) Except as otherwise explicitly provided in this Agreement, to the
extent a conflict or inconsistency exists between the terms and provisions of
this Agreement and the terms and provisions of the Intercreditor Agreement, the
terms and provisions of the Intercreditor Agreement shall govern.
(d) Except as provided in subsection (c) above, this Agreement
represents the final agreement of the Grantors and the Secured Party with
respect to the matters contained herein, subject to the terms of the
Intercreditor Agreement, and may not be contradicted by evidence of prior or
contemporaneous agreements, or subsequent oral agreements, between any Grantor
and the Secured Party.
SECTION 23. Headings. Section headings in this Agreement are included
herein for convenience of reference only and shall not constitute a part of this
Agreement or be given any substantive effect.
SECTION 24. Counterparts. This Agreement may be executed in any number
of counterparts, each of which when so executed and delivered shall be deemed an
original, but all such counterparts together shall constitute one and the same
agreement.
{Signature Pages to follow}
13
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
TMAS/ASI, INC.
By: /s/
-------------------------
▇▇▇▇▇ ▇▇▇▇▇▇, Treasurer
TRIAD INTERNATIONAL MAINTENANCE CORPORATION
By: /s/
-------------------------
▇▇▇▇▇ ▇▇▇▇▇▇, Treasurer
AIRCRAFT INTERIOR DESIGN, INC.
By: /s/
-------------------------
▇▇▇▇▇ ▇▇▇▇▇▇, Treasurer
TIMCO ENGINE CENTER, INC.
By: /s/
-------------------------
▇▇▇▇▇ ▇▇▇▇▇▇, Treasurer
AVIATION SALES DISTRIBUTION SERVICES COMPANY
By: /s/
-------------------------
▇▇▇▇▇ ▇▇▇▇▇▇, Treasurer
AVS/M-2, INC.
By: /s/
-------------------------
▇▇▇▇▇ ▇▇▇▇▇▇, Treasurer
WHITEHALL CORPORATION
By: /s/
-------------------------
▇▇▇▇▇ ▇▇▇▇▇▇, Treasurer
AVS/M-3, INC.
By: /s/
-------------------------
▇▇▇▇▇ ▇▇▇▇▇▇, Treasurer
AVS/CAI, INC.
By: /s/
-------------------------
▇▇▇▇▇ ▇▇▇▇▇▇, Treasurer
AVIATION SALES LEASING COMPANY
By: /s/
-------------------------
▇▇▇▇▇ ▇▇▇▇▇▇, Treasurer
AVS/M-1, INC.
By: /s/
-------------------------
▇▇▇▇▇ ▇▇▇▇▇▇, Treasurer
AVSRE, L.P.
by Aviation Sales Property Management Corp.,
its General Partner
By: /s/
-------------------------
▇▇▇▇▇ ▇▇▇▇▇▇, Treasurer
AVIATION SALES PROPERTY MANAGEMENT CORP.
By: /s/
-------------------------
▇▇▇▇▇ ▇▇▇▇▇▇, Treasurer
HYDROSCIENCE, INC.
By: /s/
-------------------------
▇▇▇▇▇ ▇▇▇▇▇▇, Treasurer
TIMCO ENGINEERED SYSTEMS, INC.
By: /s/
-------------------------
▇▇▇▇▇ ▇▇▇▇▇▇, Treasurer
TIMCO AVIATION SERVICES, INC.
By: /s/
-------------------------
▇▇▇▇▇ ▇▇▇▇▇▇, Treasurer
▇▇▇▇▇ MANUFACTURING COMPANY, INC.
By: /s/
-------------------------
▇▇▇▇▇ ▇▇▇▇▇▇, Treasurer
LJH, LTD., a Texas limited partnership
By: DLH Management, L.L.C., a Texas limited
liability company, its general partner
By: /s/
-------------------------------------
▇▇▇▇ ▇▇▇▇▇▇, President