SIXTH AMENDMENT TO CREDIT AGREEMENT AND ACKNOWLEDGMENT AND
AGREEMENT WITH RESPECT TO OTHER CREDIT DOCUMENTS
SIXTH AMENDMENT, dated as of December 4, 1998 (this "Amendment"),
among TRISTAR AEROSPACE CO. (f/k/a Maple Leaf Aerospace, Inc.) ("Parent"),
AEROSPACE ACQUISITION CORP. ("Holdings"), TRISTAR AEROSPACE, INC. (as successor
by merger with Tri-Star Aerospace Co.) ("TriStar"), TRISTAR AEROSPACE SARL, a
Wholly-Owned Subsidiary of TriStar organized and existing under the laws of
France, the financial institutions party to the Credit Agreement described
below (the "Banks") and BANKERS TRUST COMPANY, as Agent. All capitalized terms
used herein and not otherwise defined shall have the respective meanings
provided such terms in the Credit Agreement referred to below.
W I T N E S S E T H :
WHEREAS, Parent, Holdings, Tristar, the Banks and the Agent are parties to
a Credit Agreement, dated as of September 19, 1996 (as amended to the date
hereof, the "Credit Agreement");
WHEREAS, TriStar Aerospace SARL desires to borrow Revolving Loans under the
Credit Agreement and the Banks and the Agent have agreed, among other things, to
permit TriStar Aerospace SARL to borrow Revolving Loans under the Credit
Agreement subject to the terms and conditions set forth herein, in the other
Credit Documents and in the Credit Agreement (in each case as modified hereby);
and
WHEREAS, TriStar Aerospace SARL desires to become a party to the Credit
Agreement (as amended hereby) and the other parties hereto wish to amend the
Credit Agreement as herein provided;
NOW THEREFORE, it is agreed:
I. AMENDMENTS TO CREDIT AGREEMENT.
1. The first recital to the Credit Agreement is hereby amended by
replacing the reference therein to "the Borrower" with a reference to "the US
Borrower and the French Borrower".
2. Section 1.01(a) of the Credit Agreement is hereby amended by
replacing each reference therein to "the Borrower" with a reference to "the US
Borrower".
3. Section 1.01(b) of the Credit Agreement is hereby amended by
deleting said section in its entirety and inserting the following new clause (b)
in lieu thereof:
(b) Subject to and upon the terms and conditions herein set
forth, each RL Bank severally agrees, at any time and from time to time on
and after (x) in the case of the US Borrower, the Initial Borrowing Date
and (y) in the case of the French Borrower, the Sixth Amendment Effective
Date, and in each case prior to the Revolving Loan Maturity Date, to make a
revolving loan or revolving loans (each, a "Revolving Loan" and,
collectively, the "Revolving Loans") to the US Borrower or the French
Borrower, which Revolving Loans (i) shall be made to the US Borrower and/or
the French Borrower on a several basis, (ii) shall be denominated in U.S.
Dollars, (iii) except as hereinafter provided, shall, at the option of the
respective Borrower, be incurred and maintained as and/or converted into
Base Rate Loans or Eurodollar Loans, PROVIDED that all Revolving Loans made
as part of the same Borrowing shall, unless otherwise specifically provided
herein, consist of Revolving Loans of the same Type, (iv) may be repaid and
reborrowed in accordance with the provisions hereof, (v) shall not exceed
for any Bank at any time outstanding that aggregate principal amount which,
when combined with such Bank's Percentage of all Swingline Loans then
outstanding and the Letter of Credit Outstandings (exclusive of Unpaid
Drawings relating to Letters of Credit which are repaid with the proceeds
of, and simultaneously with the incurrence of, the respective incurrence of
Revolving Loans) at such time, equals the Revolving Loan Commitment of such
Bank at such time and (vi) in the case of the French Borrower, shall not
exceed, when added to the then outstanding principal amount of Revolving
Loans and Swingline Loans incurred by the French Borrower, $5,000,000 in
aggregate principal amount outstanding at any time.
4. Section 1.01(c) of the Credit Agreement is hereby amended by
deleting said section in its entirety and inserting the following new clause (c)
in lieu thereof:
(c) Subject to and upon the terms and conditions herein set
forth, BTCo in its individual capacity agrees to make at any time and from
time to time on and after (x) in the case of the US Borrower, the Initial
Borrowing Date and (y) in the case of the French Borrower, the Sixth
Amendment Effective Date, and in each case prior to the Swingline Expiry
Date, a loan or loans to the US Borrower or the French Borrower (each, a
"Swingline Loan" and, collectively, the "Swingline Loans"), which Swingline
Loans (i) shall be made to the US Borrower and/or the French Borrower on a
several basis, (ii) shall be made and maintained as Base Rate Loans, (iii)
shall be denominated in U.S. Dollars, (iv) may be repaid and reborrowed in
accordance with the provisions hereof, (v) shall not exceed in aggregate
principal amount at any time outstanding, when combined with the aggregate
principal amount of all Revolving Loans then outstanding and the Letter of
Credit Outstandings (exclusive of Unpaid Drawings relating to Letters of
Credit which are repaid with the proceeds of, and simultaneously with the
incurrence of, the respective incurrence of Revolving Loans) at such time,
an amount equal to the Total Revolving Loan Commitment then in effect, (vi)
shall not exceed in aggregate principal amount at any time outstanding for
all Swingline Loans the Maximum Swingline Amount and (vii) in the case of
the French Borrower, shall not exceed, when added to the then outstanding
principal amount of Revolving Loans and Swingline Loans incurred by the
French Borrower, $5,000,000 in aggregate principal amount outstanding at
any time. BTCo shall not be obligated to make any Swingline Loans at a
time when a Bank Default
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exists unless BTCo has entered into arrangements satisfactory to it and
the respective Borrower to eliminate BTCo's risk with respect to the
Defaulting Bank's or Banks' participation in such Swingline Loans,
including by cash collateralizing such Defaulting Bank's or Banks'
Percentage of the outstanding Swingline Loans. BTCo will not make
a Swingline Loan after it has received written notice from any Borrower
or the Required Banks stating that a Default or an Event of Default
exists until such time as BTCo shall have received a written notice
of (i) rescission of such notice from the party or parties originally
delivering the same or (ii) a waiver of such Default or Event of Default
from the Required Banks.
5. Section 1.01(d) of the Credit Agreement is hereby amended by
deleting said section in its entirety and inserting the following new clause (c)
in lieu thereof:
(a) On any Business Day, BTCo may, in its sole discretion, give
notice to the ▇▇ ▇▇▇▇▇ that its outstanding Swingline Loans shall be funded
with a Borrowing of Revolving Loans (PROVIDED that each such notice shall
be deemed to have been automatically given upon the occurrence of a Default
or an Event of Default under Section 10.05 or upon the exercise of any of
the remedies provided in the last paragraph of Section 10), in which case a
Borrowing of Revolving Loans constituting Base Rate Loans (each such
Borrowing, a "Mandatory Borrowing") shall be made by either or both of the
Borrowers, according to their respective Swingline Loans outstanding at
such time, on the immediately succeeding Business Day by all ▇▇ ▇▇▇▇▇ PRO
RATA based on each RL Bank's Percentage, and the proceeds thereof shall be
applied directly to repay BTCo for such outstanding Swingline Loans of the
respective Borrowers. Each RL Bank hereby irrevocably agrees to make Base
Rate Loans upon one Business Day's notice pursuant to each Mandatory
Borrowing in the amount and in the manner specified in the preceding
sentence and on the date specified in writing by BTCo notwithstanding (i)
that the amount of the Mandatory Borrowing may not comply with the Minimum
Borrowing Amount otherwise required hereunder, (ii) whether any conditions
specified in Section 5 or 6 are then satisfied, (iii) whether a Default or
an Event of Default has occurred and is continuing, (iv) the date of such
Mandatory Borrowing and (v) the amount of the Total Revolving Loan
Commitment at such time. In the event that any Mandatory Borrowing cannot
for any reason be made on the date otherwise required above (including,
without limitation, as a result of the commencement of a proceeding under
the Bankruptcy Code in respect of any Borrower), each RL Bank (other than
BTCo) hereby agrees that it shall forthwith purchase from BTCo (without
recourse or warranty) such assignment of the outstanding Swingline Loans as
shall be necessary to cause the ▇▇ ▇▇▇▇▇ to share in such Swingline Loans
ratably based upon their respective Percentages (determined before giving
effect to any termination of the Revolving Loan Commitments pursuant to the
last paragraph of Section 10), PROVIDED that (x) all interest payable on
the Swingline Loans shall be for the account of BTCo until the date the
respective assignment is purchased and, to the extent attributable to the
purchased assignment, shall be payable to the RL Bank purchasing same from
and after such date of purchase and (y) at the time any purchase of
assignments pursuant to this sentence is actually made, the purchasing RL
Bank shall be required to pay BTCo interest on the principal amount of
assignment purchased for each day from and including the day upon which the
Mandatory Borrowing
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would otherwise have occurred to but excluding the date of payment for
such assignment, at the rate otherwise applicable to Revolving Loans
maintained as Base Rate Loans hereunder for each day thereafter.
6. Section 1.01 is further amended by inserting the following new
clause (e) immediately following clause (d) thereof:
(e) On the Sixth Amendment Effective Date, all then outstanding
Revolving Loans shall be deemed to be repaid in full and reborrowed in
accordance with the terms of the amended Revolving Loan Commitments of the
▇▇ ▇▇▇▇▇, PROVIDED that, notwithstanding anything to the contrary contained
in Section 1.11, each RL Bank agrees (in each case as to itself only) to
waive payment by the US Borrower of all breakage costs incurred as a result
of such repayment.
7. Section 1.03(a) of the Credit Agreement is hereby amended by (i)
replacing the reference to "the Borrower" therein with a reference to "a
Borrower", (ii) inserting the phrase " by the respective Borrower requesting
such proposed Borrowing" immediately following the reference therein to
"appropriately completed" and (iii) inserting the phrase "to be made to the US
Borrower," immediately following the reference to "Borrowing of Revolving Loans"
appearing in clause (v) thereof.
8. Section 1.03(b) of the Credit Agreement is hereby amended by (i)
replacing the reference in clause (i) thereof to "the Borrower" with a
reference to "a Borrower" and (ii) replacing the reference in clause (ii)
thereof to "the Borrower" with a reference to "the respective Borrower".
9. Sections 1.03(c) and 1.04 of the Credit Agreement are hereby
amended by replacing each reference therein to "the Borrower" with a reference
to "the respective Borrower".
10. Section 1.05(a) of the Credit Agreement is hereby amended by
deleting said clause (a) in its entirety and inserting the following new clause
(a) in lieu thereof:
(a) the US Borrower's and the French Borrower's respective
obligations to pay the principal of, and interest on, all the Loans made to
it by each Bank shall be evidenced (i) if Term Loans, a promissory note
executed by the US Borrower substantially in the form of Exhibit B-1 with
blanks appropriately completed in conformity herewith (each, a "Term Note"
and, collectively, the "Term Notes"), (ii) if Revolving Loans, by
promissory notes executed by the respective Borrower substantially in the
form of Exhibit B-2 with blanks appropriately completed in conformity
herewith (each, a "Revolving Note" and, collectively, the "Revolving
Notes") and (iii) if Swingline Loans, by promissory notes executed by the
respective Borrower substantially in the form of Exhibit B-3 with blanks
appropriately completed in conformity herewith (each a "Swingline Note"
and, collectively, the "Swingline Notes").
11. Section 1.05(b) of the Credit Agreement is hereby amended by
replacing all references therein to "the Borrower" with references to "the US
Borrower".
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12. Section 1.05(c) of the Credit Agreement is hereby amended by
deleting said section (c) in its entirety and inserting the following new clause
(c) in lieu thereof:
(c) (i) The Revolving Note issued to each RL Bank by the US
Borrower shall (t) be executed by the US Borrower, (u) be payable to such
Bank or its registered assigns and be dated the Initial Borrowing Date, (v)
be in a stated principal amount equal to the Revolving Loan Commitment of
such Bank and be payable in the principal amount of the outstanding
Revolving Loans made to the US Borrower evidenced thereby, (w) mature on
the Revolving Loan Maturity Date, (x) bear interest as provided in the
appropriate clause of Section 1.08 in respect of the Base Rate Loans and
Eurodollar Loans, as the case may be, evidenced thereby, (y) be subject to
voluntary prepayment as provided in Section 4.01 and mandatory repayment as
provided in Section 4.02 and (z) be entitled to the benefits of this
Agreement and the other Credit Documents and (ii) the Revolving Note issued
to each RL Bank by the French Borrower on the Sixth Amendment Effective
Date shall (t) be executed by the French Borrower, (u) be payable to such
Bank or its registered assigns and be dated the Sixth Amendment Effective
Date, (v) be in a stated principal amount equal to such Bank's Percentage
of $5,000,000 and be payable in the principal amount of the outstanding
Revolving Loans made to the French Borrower evidenced thereby, (w) mature
on the Revolving Loan Maturity Date, (x) bear interest as provided in the
appropriate clause of Section 1.08 in respect of the Base Rate Loans and
Eurodollar Loans, as the case may be, evidenced thereby, (y) be subject to
voluntary prepayment as provided in Section 4.01 and mandatory repayment as
provided in Section 4.02 and (z) be entitled to the benefits of this
Agreement and the other Credit Documents.
13. Section 1.05(d) of the Credit Agreement is hereby amended by
deleting said section (d) in its entirety and inserting the following new clause
(d) in lieu thereof:
(d) (i) The Swingline Note issued to BTCo by the US Borrower
shall (t) be executed by the US Borrower, (u) be payable to BTCo or its
registered assigns and be dated the Initial Borrowing Date, (v) be in a
stated principal amount equal to the Maximum Swingline Amount and be
payable in the principal amount of the outstanding Swingline Loans made to
the US Borrower evidenced thereby, (w) mature on the Swingline Expiry Date,
(x) bear interest as provided in Section 1.08 in respect of the Base Rate
Loans evidenced thereby, (y) be subject to voluntary prepayment as provided
in Section 4.01 and mandatory repayment as provided in Section 4.02 and (z)
be entitled to the benefits of this Agreement and the other Credit
Documents and (ii) the Swingline Note issued to BTCo by the French Borrower
shall (t) be executed by the French Borrower, (u) be payable to BTCo or its
registered assigns and be dated the Sixth Amendment Effective Date, (v) be
in a stated principal amount equal to the Maximum Swingline Amount and be
payable in the principal amount of the outstanding Swingline Loans made to
the French Borrower evidenced thereby, (w) mature on the Swingline Expiry
Date, (x) bear interest as provided in Section 1.08 in respect of the Base
Rate Loans evidenced thereby, (y) be subject to voluntary prepayment as
provided in Section 4.01 and mandatory repayment as provided in Section
4.02 and (z) be entitled to the benefits of this Agreement and the other
Credit Documents.
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14. Section 1.06 of the Credit Agreement is hereby amended by (i)
replacing each reference to "The Borrower" or "the Borrower" appearing therein
with a reference to "The respective Borrower" or "the respective Borrower",
respectively, and (ii) inserting the word "its" immediately prior to the first
reference therein to "Loans".
15. Section 1.07 of the Credit Agreement is hereby amended by
replacing the reference therein to "the Borrower" with a reference to "the
respective Borrower".
16. Section 1.08(f) of the Credit Agreement is hereby amended by
replacing the reference therein to "the Borrower" with a reference to "the
respective Borrower".
17. Section 1.09 of the Credit Agreement is hereby amended by (i)
replacing the first reference therein to "the Borrower" with a reference to "a
Borrower" and (ii) replacing all subsequent references therein to "the Borrower"
with references to "the respective Borrower".
18. Section 1.10 of the Credit Agreement is hereby amended by (i)
replacing the first reference therein to "the Borrower" with a reference to
"each Borrower" and (ii) replacing all subsequent references therein to "the
Borrower" with references to "the respective Borrower".
19. Section 1.11 of the Credit Agreement is hereby amended by (i)
replacing the word "The" at the beginning thereof with the word "Each", (ii)
replacing each remaining reference therein to "the Borrower" with references to
"the respective Borrower" and (iii) inserting the phrase "in respect of Loans
made to such Borrower or Notices of Borrowing or Notices of Conversion delivered
by such Borrower" immediately prior to the colon preceding clause (i) thereof.
20. Section 1.12 of the Credit Agreement is hereby amended by (i)
replacing the first reference therein to "the Borrower" with a reference to "the
US Borrower" and (ii) replacing the remaining reference to "the Borrower" with a
reference to "any Borrower".
21. Section 1.13 of the Credit Agreement is hereby amended by (i)
replacing the first reference therein to "the Borrower" with a reference to "a
Borrower", (ii) replacing the next two subsequent references therein to "the
Borrower" with references to "the US Borrower", (iii) replacing the reference to
"the Borrower" in clause (ii) thereof with a reference to "each Borrower" and
(iv) replacing the reference to "the Borrower" appearing in the last sentence
thereof with a reference to "the respective Borrower or Borrowers".
22. Section 2 of the Credit Agreement is hereby amended by replacing
all references therein to "the Borrower" and "the Borrower's" with a references
to "the US Borrower" and "the US Borrower's", respectively.
23. Section 3 of the Credit Agreement is hereby amended by replacing
all references therein to "The Borrower", "the Borrower" and "the Borrower's"
with references to "The US Borrower", "the US Borrower" and "the US Borrower's",
respectively.
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24. Section 3 of the Credit Agreement is hereby further amended by
deleting the schedule appearing in Section 3.03(c) in its entirety and replacing
it with the following new schedule:
Scheduled Commitment Amount
Reduction Date ------
--------------
September 19, 2000 $15,000,000
September 19, 2001 $35,000,000
25. Section 4.01(a) of the Credit Agreement is hereby amended by (i)
replacing the first reference therein to "The Borrower" with a reference to
"Each Borrower", (ii) replacing all subsequent references therein to "the
Borrower" and "the Borrower's" with references to "such Borrower" and "such
Borrower's", respectively, (iii) replacing the first reference therein to "the
Loans" with a reference to "the Loans made to it" and (iv) inserting the phrase
", in the case of the US Borrower," immediately following the reference to
"Swingline Loans and/or" appearing in clause (a) thereof.
26. Section 4.01(b) of the Credit Agreement is hereby amended by
replacing the reference therein to "the Borrower shall" with a reference to "the
US Borrower and the French Borrower shall together".
27. Section 4.02(a) of the Credit Agreement is hereby amended by (i)
replacing the first reference therein to "the Borrower" with a reference to "the
US Borrower and/or the French Borrower" and (ii) replacing all subsequent
references therein to "the Borrower" with references to "the US Borrower".
28. Sections 4.02(b) and (c) of the Credit Agreement are hereby
amended by replacing all references therein to "the Borrower" with references to
"the US Borrower"
29. Section 4.02(f) of the Credit Agreement is hereby amended by (i)
replacing all references to "the Borrower" appearing in clauses (x) and (y)(a)
through (c) of said section with references to "the US Borrower", (ii) replacing
the first reference in clause (y)(d) thereof to "the Borrower" with a reference
to "the US Borrower", (iii) replacing the second reference in clause (y)(d)
thereof to "the Borrower" with a reference to "the US Borrower and its
Subsidiaries", (iv) replacing the third reference in clause (y)(d) thereof to
"the Borrower" with a reference to "each Borrower", (v) replacing the fourth
reference in clause (y)(d) thereof to "the Borrower" with a reference to "such
Borrower" and (vi) replacing all subsequent references therein to "the Borrower"
with references to "the US Borrower".
30. Section 4.02(j) of the Credit Agreement is hereby amended by
(i) replacing the reference therein to "the Borrower may designate" with a
reference to "the US Borrower and/or the French Borrower may designate among
themselves which of their respective Loans are to be repaid (in the case of a
repayment of Revolving Loans), ", (ii) inserting the phrase "of such
Borrower" immediately prior to the reference to "of the respective Tranche"
appearing in clause
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(i) thereof, and (iii) replacing the reference to "the Borrower" appearing in
clause (iii) thereof with a reference to "the respective Borrower".
31. Section 4.02 of the Credit Agreement is hereby further amended by
inserting the following new clause (l) immediately following clause (k) thereof:
(l) Notwithstanding anything to the contrary contained elsewhere in
this Agreement, on any day that the French Borrower shall cease to be a
Wholly-Owned Subsidiary of Parent, the French Borrower shall be required
to repay in full on such date all then outstanding Revolving Loans and
Swingline Loans made to the French Borrower.
32. Section 4.04(a) of the Credit Agreement is hereby amended by (i)
replacing the first reference therein to "the Borrower" with a reference to
"each Borrower" and (ii) replacing all subsequent references therein to "the
Borrower" with references to "the respective Borrower".
33. Section 4.04(b) of the Credit Agreement is hereby amended by (i)
replacing each reference to "the Borrower" appearing in the first and second
sentences thereof with a reference to "the US Borrower", (ii) replacing the
first reference to "the Borrower" appearing in clause (x) of the third sentence
thereof with a reference to "either Borrower", (iii) replacing the second
reference to "the Borrower" appearing in clause (x) of the third sentence
thereof with a reference to "the US Borrower", (iv) replacing the reference to
"the Borrower shall not" appearing in clause (y) of the third sentence thereof
with a reference to "no Borrower shall", (v) replacing the second and third
references to "the Borrower" appearing in clause (y) of the third sentence
thereof with a reference to "the US Borrower" and (vi) replacing the reference
to "the Borrower" appearing in the fourth sentence thereof with a reference to
"each Borrower".
34. Section 5 of the Credit Agreement is hereby amended by replacing
the reference to "the Borrower" appearing in the introductory paragraph thereof
with a reference to "any Borrower".
35. Section 6.02 of the Credit Agreement is hereby amended by
replacing the reference therein to "the Borrower" with a reference to "either
Borrower".
36. Section 6 of the Credit Agreement is hereby further amended by
adding the following new Section 6.05 immediately after Section 6.04, but before
the last paragraph of Section 6:
"6.05 SPECIAL CONDITION REGARDING REVOLVING LOANS AND SWINGLINE LOANS
TO FRENCH BORROWER. At the time of the making of each Revolving Loan
(excluding Mandatory Borrowings) and each Swingline Loan to the French
Borrower, the French Borrower shall be a Wholly-Owned Subsidiary of
Parent."
37. Section 6 of the Credit Agreement is hereby further amended by
replacing the reference to "the Borrower" appearing in the final paragraph
thereof with a reference to "the US Borrower and, in the case of a Borrowing of
Revolving Loans or Swingline Loans to the French Borrower, the French Borrower".
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38. Section 7 of the Credit Agreement is hereby amended by replacing
the reference to "and the Borrower" appearing in the introductory paragraph
thereof with a reference to ", the US Borrower and, in the case of a Borrowing
of Revolving Loans or Swingline Loans to the French Borrower, the French
Borrower".
39. Section 7.05(b) of the Credit Agreement is hereby amended by
replacing the reference to "the Borrower and its Subsidiaries" appearing in the
final paragraph thereof with a reference to "the respective Borrower and its
Subsidiaries".
40. Section 7.13 (ii) of the Credit Agreement is hereby amended by
replacing the reference therein to "the Borrower's" with a reference to "the US
Borrower's".
41. Section 7.14(d) of the Credit Agreement is hereby amended by
replacing the reference therein to "the Borrower" with a reference to "the US
Borrower".
42. Section 8 of the Credit Agreement is hereby amended by replacing
the reference to "the Borrower" appearing in the introductory paragraph thereof
with a reference to "each Borrower".
43. Section 8.01(k) of the Credit Agreement is hereby amended by
replacing the reference therein to "the Borrower" with a reference to "the US
Borrower".
44. Section 8.02 of the Credit Agreement is hereby amended by
replacing all references therein to "the Borrower" with references to "the US
Borrower".
45. Section 8.03 of the Credit Agreement is hereby amended by (i)
replacing the first and third references therein to "the Borrower" with a
reference to "each Borrower" and (ii) replacing the second reference therein to
"the Borrower" with a reference to "the US Borrower".
46. Section 8.04 of the Credit Agreement is hereby amended by
replacing the reference therein to "the Borrower" with a reference to "each
Borrower".
47. Section 8.05 of the Credit Agreement is hereby amended by
replacing the reference therein to "the Borrower" with a reference to "each
Borrower".
48. Section 8.06 of the Credit Agreement is hereby amended by
replacing the reference therein to "the Borrower" with a reference to "each
Borrower".
49. Section 8.07(a) of the Credit Agreement is hereby amended by
replacing each reference therein to "the Borrower" with a reference to "each
Borrower".
50. Section 8.07(b) of the Credit Agreement is hereby amended by
replacing the reference therein to "the Borrower" with a reference to "the US
Borrower".
51. Section 8.08 of the Credit Agreement is hereby amended by
deleting the reference therein to "Borrower,".
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52. Section 8.09 of the Credit Agreement is hereby amended by
replacing the reference therein to "the Borrower" with a reference to "each
Borrower".
53. Section 8.11(b) of the Credit Agreement is hereby amended by
replacing the reference therein to "the Borrower" with a reference to "the US
Borrower".
54. Section 8.12 of the Credit Agreement is hereby amended by
replacing each reference therein to "the Borrower" with a reference to "the US
Borrower".
55. Section 8.14 of the Credit Agreement is hereby amended by
replacing each reference therein to "the Borrower" with a reference to "the US
Borrower".
56. Section 8.15 of the Credit Agreement is hereby amended by
replacing the reference therein to "the Borrower" with a reference to "each
Borrower".
57. Section 8.16 of the Credit Agreement is hereby amended by
replacing the reference therein to "the Borrower" with a reference to "each
Borrower".
58. Section 8.18 of the Credit Agreement is hereby amended by
replacing the reference therein to "the Borrower" with a reference to "the US
Borrower".
59. Section 8.19 of the Credit Agreement is hereby amended by
replacing each reference therein to "The Borrower" or "the Borrower" with a
reference to "The US Borrower" or "the US Borrower", respectively.
60. Section 9 of the Credit Agreement is hereby amended by replacing
the reference to "the Borrower" appearing in the introductory paragraph thereof
with a reference to "each Borrower".
61. Section 9.01(b) of the Credit Agreement is hereby amended by
deleting said section (b) in its entirety and inserting the following new clause
(b) in lieu thereof:
(b) Notwithstanding the foregoing, neither Parent nor Holdings
will engage in any business other than its ownership of the capital stock
of Holdings or the US Borrower, respectively, and those obligations of
officers and employees of Parent permitted by Section 9.05(h) and having
those liabilities which it is responsible for (or permitted to incur) under
this Agreement and the other Documents to which it is a party; provided
that each of Parent and Holdings may engage in those activities that are
incidental to (1) the maintenance of its corporate existence in compliance
with applicable law, (2) legal, tax and accounting matters in connection
with any of the foregoing activities and (3) the entering into, and
performance of its obligations under, this Agreement and the other
Documents to which it is a party.
62. Section 9.02 of the Credit Agreement is hereby amended by (i)
replacing each reference therein to "the Borrower" with a reference to "the US
Borrower" and (ii) deleting clause (l) thereof in its entirety and inserting the
following new clause (l) in lieu thereof:
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(l) so long as no Default or Event of Default exists or would result
therefrom (including, without limitation, pursuant to Section 10.10),
Parent may purchase, in the open market or otherwise, up to $20,000,000 in
the aggregate of its common stock.
63. Section 9.03 of the Credit Agreement is hereby amended by
replacing each reference therein to "the Borrower" with a reference to "the US
Borrower".
64. Section 9.04 of the Credit Agreement is hereby amended by
replacing each reference therein to "the Borrower" with a reference to "the US
▇▇▇▇▇▇▇▇".
▇▇. ▇▇▇▇▇▇▇▇ ▇.▇▇(▇), (▇), (▇), (▇), (▇), (▇), (▇) and (n) of the
Credit Agreement are hereby amended by replacing each reference therein to "the
Borrower" with a reference to "the US Borrower".
66. Section 9.05(i) of the Credit Agreement is hereby amended by
deleting said section (i) in its entirety and inserting the following new
section (i) in lieu thereof:
(i) Parent and Holdings may make equity contributions, directly in
the case of Holdings, or by way of downstream contributions in the case of
Parent, to the capital of the US Borrower;
67. Section 9.06 of the Credit Agreement is hereby amended by (i)
replacing each reference to "the Borrower" appearing in clause (i) thereof with
a reference to "the US Borrower" and (ii) deleting clauses (iii), (iv) and (v)
thereof in their entirety and inserting the following new clauses (iii), (iv),
(v) and (vi) in lieu thereof:
(iii) so long as no Default or Event of Default then exists or
would result therefrom, the US Borrower may pay cash Dividends to Holdings,
which in turn shall pay such amounts to Parent, so long as the cash
proceeds thereof are promptly used by Parent for the purposes described in
clause (ii) or (v) of this Section 9.06;
(iv) cash Dividends may be paid to Holdings and/or Parent so long
as the proceeds thereof are promptly used by the ultimate recipient thereof
to pay operating expenses in the ordinary course of business (including,
without limitation, professional fees and expenses) and other similar
corporate overhead costs and expenses, PROVIDED, that the aggregate amount
of cash Dividends paid pursuant to this clause (iv) (calculated without
duplication in the case of amounts not Dividended to Holdings or the
Parent) shall at no time during any fiscal year of the US Borrower exceed
$200,000;
(v) cash Dividends may be paid to Parent and Holdings in the
amounts and at the times of any payment by the ultimate such recipient in
respect of its taxes (or taxes of the consolidated group of which it is
parent), PROVIDED, that (x) the amount of cash Dividends paid pursuant to
this clause (v) to enable Parent or Holdings to pay taxes at any time shall
not exceed the amount of such taxes owing by the ultimate such recipient at
such time for the respective period and (y) any refunds received by Parent
or Holdings shall promptly be returned by such Person to the US Borrower;
and
11
(vi) so long as no Default or Event of Default exists or would
result therefrom, Parent may purchase shares of common stock of Parent to
the extent permitted by Section 9.02(l).
68. Section 9.07 of the Credit Agreement is hereby amended by (i)
replacing each reference therein to "the Borrower" with a reference to "the US
Borrower", (ii) replacing the word "and" at the end of clause (iv) thereof with
a semi-colon and (iii) inserting the following new clause (vi) immediately
following clause (v) thereof: " and (vi) the purchase by Parent of its common
stock to the extent permitted by Section 9.02(l)".
69. Section 9.08 of the Credit Agreement is hereby amended by
replacing each reference therein to "the Borrower" with a reference to "the US
Borrower".
70. Section 9.14 of the Credit Agreement is hereby amended by
replacing each reference therein to "the Borrower" with a reference to "the US
Borrower"
71. Section 9.15 of the Credit Agreement is hereby amended by
replacing the first reference therein to "the Borrower" with a reference to "the
US Borrower".
72. Section 10.01 of the Credit Agreement is hereby amended by
replacing the reference therein to "The Borrower" with a reference to "Either
Borrower"
73. Section 10 of the Credit Agreement is hereby further amended by
deleting the final paragraph following Section 10.10 thereof in its entirety and
inserting the following new paragraph in lieu thereof:
then, and in any such event, and at any time thereafter, if any Event of
Default shall then be continuing, the Agent shall, upon the written request
of the Required Banks, by written notice to the US Borrower, take any or
all of the following actions, without prejudice to the rights of the Agent
or any Bank to enforce its claims against any Guarantor or either Borrower,
except as otherwise specifically provided for in this Agreement (PROVIDED,
that if an Event of Default specified in Section 10.05 shall occur with
respect to either Borrower, the result which would occur upon the giving of
written notice by the Agent as specified in clauses (i) and (ii) below
shall occur automatically without the giving of any such notice): (i)
declare the Total Commitment terminated, whereupon the Commitment of each
Bank shall forthwith terminate immediately and any Commitment Fees shall
forthwith become due and payable without any other notice of any kind; (ii)
declare the principal of and any accrued interest in respect of all Loans
and all Obligations owing hereunder (including Unpaid Drawings) to be,
whereupon the same shall become, forthwith due and payable without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by each Borrower; (iii) enforce, as Collateral Agent (or
direct the Collateral Agent to enforce), any or all of the Liens and
security interests created pursuant to the Security Documents; (iv)
terminate any Letter of Credit which may be terminated in accordance with
its terms; (v) direct the US Borrower to pay (and the US Borrower hereby
agrees upon receipt of such notice, or upon the occurrence of any Event of
Default specified in Section 10.05, to pay) to the Collateral Agent at the
12
Payment Office such additional amounts of cash, to be held as security for
the US Borrower's reimbursement obligations in respect of Letters of Credit
then outstanding, equal to the aggregate Stated Amount of all Letters of
Credit then outstanding; and (vi) apply any cash collateral as provided in
Section 4.02.
74. Section 11 of the Credit Agreement is hereby amended by (i)
deleting the following definitions in their entirety:
Authorized Officer
Borrower
Borrowing
Credit Party
Guaranteed Obligations
Material Adverse Effect
Parent
Permitted Acquisition
Security Agreement Collateral
Security Documents
, (ii) inserting the following new definitions in appropriate alphabetical
order:
"Authorized Officer" shall mean, with respect to (i) delivering
Notices of Borrowing, Notices of Conversion and similar notices, any
treasurer or other financial officer of the respective Borrower delivering
such notice, (ii) delivering Letter of Credit Requests, financial
information and officer's certificates pursuant to this Agreement, any
treasurer or other financial officer of the US Borrower and (iii) any other
matter in connection with this Agreement or any other Credit Document, any
officer (or a person or persons so designated by any two officers) of
Parent or the US Borrower, in each case to the extent reasonably acceptable
to the Agent.
"Borrower" shall mean (i) at any time prior to the Sixth Amendment
Effective Date and prior to the merger of Tri-Star Aerospace Co. with and
into Tri-Star Holdings, with Tri-Star Holdings emerging as the surviving
corporation, Tri-Star Aerospace Co., (ii) at any time thereafter and prior
to the Sixth Amendment Effective Date, Tri-Star Holdings and (iii) at any
time after the Sixth Amendment Effective Date, each of the US Borrower and
the French Borrower; PROVIDED that, for purposes of Section 13.12 only,
each reference to "the Borrower" appearing therein shall be deemed a
reference to "the US Borrower".
"Borrowing" shall mean and include (i) the borrowing of Swingline
Loans by a single Borrower from BTCo on a given date and (ii) the borrowing
of one Type of Loan pursuant to a single Tranche by a single Borrower from
all of the Banks having Commitments with respect to such Tranche on a PRO
RATA basis on a given date (or resulting from conversions on a given date),
having in the case of Eurodollar Loans the same Interest Period; PROVIDED,
that Base Rate Loans incurred pursuant to Section 1.10(b) shall be
considered part of any related Borrowing of Eurodollar Loans.
13
"Credit Party" shall mean Parent, Holdings, the US Borrower, the
French Borrower and each Subsidiary Guarantor.
"French Borrower" shall mean TriStar Aerospace SARL, a corporation
organized and existing under the laws of France.
"French Pledge Agreement" shall have the meaning provided in the Sixth
Amendment.
"French Security Agreement" shall have the meaning provided in the
Sixth Amendment.
"Guaranteed Obligations" shall mean (i) the principal and interest on
each Note issued by each Borrower to each Bank, and Loans made, under this
Agreement and all reimbursement obligations and Unpaid Drawings with
respect to Letters of Credit, together with all the other obligations
(including obligations which, but for the automatic stay under Section
362(a) of the Bankruptcy Code, would become due) and liabilities
(including, without limitation, indemnities, fees and interest thereon) of
each Borrower to such Bank, the Agent and the Collateral Agent now existing
or hereafter incurred under, arising out of or in connection with this
Agreement or any other Credit Document and the due performance and
compliance with all the terms, conditions and agreements contained in the
Credit Documents by each Borrower and (ii) all obligations (including
obligations which, but for the automatic stay under Section 362(a) of the
Bankruptcy Code, would become due) and liabilities of each Borrower or any
of its Subsidiaries owing under any Interest Rate Protection Agreement or
Other Hedging Agreement entered into by such Borrower or any of its
Subsidiaries with any Bank or any affiliate thereof (even if such Bank
subsequently ceases to be a Bank under this Agreement for any reason) so
long as such Bank or affiliate participate in such Interest Rate Protection
Agreement or Other Hedging Agreement, and their subsequent assigns, if any,
whether now in existence or hereafter arising, and the due performance and
compliance with all terms, conditions and agreements contained therein.
"Material Adverse Effect" shall mean a material adverse effect on the
business, properties, assets, liabilities, condition (financial or
otherwise) or prospects of Parent, Holdings, the US Borrower, the US
Borrower and its Subsidiaries taken as a whole, Holdings and its
Subsidiaries taken as a whole or Parent and its Subsidiaries taken as a
whole; PROVIDED that for purposes of satisfying the conditions precedent to
the extensions of credit on Initial Borrowing Date and the representations
and warranties made pursuant to the Credit Documents on the Initial
Borrowing Date, it shall also constitute a Material Adverse Effect if there
has been a material adverse effect on the business, properties, assets,
liabilities, condition (financial or otherwise) or prospects of either
Tri-Star Aerospace or the Aviall Business.
"Parent" shall have the meaning provided in the first paragraph of
this Agreement, or, after such corporation's name is changed pursuant to
the events described in the
14
Fourth Amendment to this Agreement, dated February 9, 1998, Parent shall
mean TriStar Aerospace Co., a Delaware corporation.
"Permitted Acquisition" shall mean the acquisition by the US Borrower
of assets constituting a business, division or product line of any Person
not already a Subsidiary of the US Borrower or of 100% of the capital stock
of any such Person, which Person shall, as a result of such acquisition,
become a Domestic Subsidiary of the US Borrower, PROVIDED that (A) the
consideration paid by the US Borrower consists solely of cash (including
proceeds of Revolving Loans), the issuance of Indebtedness otherwise
permitted in Section 9.04, the issuance of Common Stock of Parent to the
extent no Default or Event of Default exists pursuant to Section 10.10 or
would result therefrom and the assumption/acquisition of any Permitted
Acquired Debt (calculated at face value) relating to such business,
division, product line or Person which is permitted to remain outstanding
in accordance with the requirements of Section 9.04, (B) in the case of the
acquisition of 100% of the capital stock of any Person, such Person shall
own no capital stock of any other Person unless either (x) such Person owns
100% of the capital stock of such other Person or (y) (1) such Person
and/or its Wholly-Owned Subsidiaries own at least 80% of the consolidated
assets of such Person and its Subsidiaries and (2) any non-Wholly Owned
Subsidiary of such Person was non-Wholly Owned prior to the date of such
Permitted Acquisition of such Person, (C) substantially all of the
business, division or product line acquired pursuant to the respective
Permitted Acquisition, or the business of the Person acquired pursuant to
the respective Permitted Acquisition and its Subsidiaries taken as a whole,
is in the United States and (D) all applicable requirements of Sections
8.14 and 9.02 applicable to Permitted Acquisitions are satisfied.
Notwithstanding anything to the contrary contained in the immediately
preceding sentence, an acquisition which does not otherwise meet the
requirements set forth above in the definition of "Permitted Acquisition"
shall constitute a Permitted Acquisition if, and to the extent, the
Required Banks agree in writing that such acquisition shall constitute a
Permitted Acquisition for purposes of this Agreement.
"Pledge Agreements" shall mean the Pledge Agreement and the French
Pledge Agreement.
"Security Agreement Collateral" shall mean all "Collateral" as defined
in the Security Agreements.
"Security Agreements" shall mean the Security Agreement and the French
Security Agreement.
"Security Documents" shall mean the Pledge Agreements, the Security
Agreements, each Mortgage and each Additional Security Document.
"Sixth Amendment" shall mean the Sixth Amendment to this Agreement
dated as of December 4, 1998.
15
"Sixth Amendment Effective Date" shall have the meaning provided in
the Sixth Amendment.
"US Borrower" shall mean Tri-Star Holdings, as the surviving
corporation of the merger of Tri-Star Aerospace Co. with and into Tri-Star
Holdings.
, (iii) replacing each reference to "the Borrower" appearing in the definitions
of "Affiliate", "Applicable Excess Cash Flow Percentage", "Canadian Subsidiary",
"Consolidated Net Income", "Excess Cash Flow", "L/C Supportable Indebtedness",
"Mortgaged Property", "Notice Office", "Payment Office" and "Subsidiary
Guarantor" with references to "the US Borrower" and (iv) replacing the reference
to "the Borrower" appearing in the definition of "Bank Default" with a reference
to "either Borrower".
75. Section 12.05 of the Credit Agreement is hereby amended by
replacing the reference therein to "the Borrower" with a reference to "the US
Borrower".
76. Section 12.06 of the Credit Agreement is hereby amended by (i)
replacing the first reference therein to "the Borrower" with a reference to
"Parent" and (ii) replacing the second, third and fourth references therein to
"the Borrower" with references to "either Borrower".
77. Section 12.10 of the Credit Agreement is hereby amended by
replacing each reference therein to "the Borrower" with a reference to "the US
Borrower".
78. Section 13.01 of the Credit Agreement is hereby amended by
replacing the reference therein to "The Borrower" with a reference to "The US
Borrower".
79. Section 13.02 of the Credit Agreement is hereby amended by
replacing each reference therein to "the Borrower" with a reference to "either
Borrower".
80. Section 13.04 of the Credit Agreement is hereby amended by (i)
replacing the reference to "the Borrower may not" appearing in the first proviso
to clause (a) thereof with a reference to "neither Borrower may", (ii) replacing
the reference to "the Borrower" appearing in clause (ii) of the third proviso to
clause (a) thereof with a reference to "either Borrower", (iii) replacing the
reference to "the Borrower" appearing in clause (iii) of the third proviso to
clause (a) thereof with a reference to "each Borrower" and (iv)replacing each
reference to "the Borrower" appearing in clause (b) thereof with a reference to
"the US Borrower".
81. Section 13.07 of the Credit Agreement is hereby amended by
replacing the reference therein to "the Borrower" with a reference to "the US
Borrower".
82. Section 13.09 of the Credit Agreement is hereby amended by
replacing the reference therein to "the Borrower" with a reference to "the US
Borrower".
83. Section 13.14 of the Credit Agreement is hereby amended by
replacing the reference therein to "the Borrower" with a reference to "the US
Borrower".
16
84. Section 13.15 of the Credit Agreement is hereby amended by (i)
replacing the reference to "the Borrower" appearing in clause (a) thereof with a
reference to "the US Borrower" and (ii) replacing the reference to "the Borrower
hereby acknowledges and agrees" appearing in clause (b) thereof with a
reference to "the other Credit Parties party hereto hereby acknowledge and
agree".
85. Section 13.17 of the Credit Agreement is hereby amended by (i)
replacing the reference therein to "The Borrower" with a reference to "Each
Borrower", (ii) replacing the first reference therein to "the Borrower's" with a
reference to "such Borrower's", (iii) replacing the second reference therein to
"the Borrower's" with a reference to "the respective Borrower's" and (iv)
replacing the final reference therein to "The Borrower" with a reference to "The
US Borrower".
86. Section 13 of the Credit Agreement is hereby further amended by
inserting the following new Section 13.18 at the end thereof:
13.18. JUDGMENT CURRENCY. (a) The Credit Parties' obligations
hereunder and under the other Credit Documents to make payments in U.S.
Dollars shall not be discharged or satisfied by any tender or recovery
pursuant to any judgment expressed in or converted into any currency other
than U.S. Dollars, except to the extent that such tender or recovery
results in the effective receipt by the Agent, the Collateral Agent or the
respective Bank of the full amount of U.S. Dollars expressed to be payable
to the Agent, the Collateral Agent or such Bank under this Agreement or the
other Credit Documents. If, for the purpose of obtaining or enforcing
judgment against any Credit Party in any court or in any jurisdiction, it
becomes necessary to convert from any currency other than U.S. Dollars
(such other currency being hereinafter referred to as the "Judgment
Currency") an amount due in U.S. Dollars, the conversion shall be made at
the rate of exchange (as quoted by the Agent or if the Agent does not quote
a rate of exchange on such currency, by a known dealer in such currency
designated by the Agent and reasonably acceptable to the relevant Borrower)
plus any premium and costs payable in connection with the purchase of U.S.
Dollars, in each case determined as of the Business Day immediately
preceding the day on which the judgment is given (such Business Day being
hereinafter referred to as the "Judgment Currency Conversion Date").
(b) If there is a change in the prevailing rate of exchange
between the Judgment Currency Conversion Date and the date of actual
payment of the amount due, the Borrowers covenant and agree to pay, or
cause to be paid, such additional amounts, if any (but in any event not a
lesser amount) as may be necessary to ensure that the amount paid in the
Judgment Currency, when converted at the rate of exchange prevailing on the
date of payment, will produce the amount of U.S. Dollars which could have
been purchased with the amount of Judgment Currency stipulated in the
judgment or judicial award at the rate of exchange determined on the
Judgment Currency Conversion Date.
17
87. Section 14.01 of the Credit Agreement is hereby amended by
replacing the reference therein to "Parent, Holdings and Tri-Star Holdings" with
a reference to "Parent, Holdings and (with respect to the Guaranteed Obligations
of the French Borrower only) the US Borrower"
88. Section 14 of the Credit Agreement is hereby further amended by
replacing each reference therein to "the Borrower" with a reference to "the
Borrowers (or in the case of the US Borrower, the French Borrower)".
89. Annex I and Exhibits A, ▇-▇, ▇-▇ and I to the Credit Agreement
are hereby amended by deleting each in its entirety and inserting Annex I and
Exhibit A, ▇-▇, ▇-▇ and I hereto, respectively, in lieu thereof.
II. ACKNOWLEDGMENT AND AGREEMENT WITH RESPECT TO OTHER CREDIT DOCUMENTS
Each Parent Guarantor (as defined after giving effect to this Amendment)
hereby acknowledges and agrees that, in addition to any obligations guaranteed
prior to giving effect to this Amendment, it has, pursuant to Section 14 of the
Credit Agreement (as amended hereby), unconditionally guaranteed to the Secured
Creditors all of the obligations of the French Borrower under the Credit
Agreement, and it is agreed that all such obligations of the French Borrower
guaranteed by the Parent Guarantors (as defined after giving effect to this
Amendment) shall be included in all references to "Credit Document Obligations"
or similar references to obligations of such Parent Guarantor contained in any
Security Document.
III. MISCELLANEOUS PROVISIONS
1. By its execution of this Amendment, the French Borrower is deemed to be
a party to the Credit Agreement as a Borrower thereunder and accepts for itself
all of the duties and obligations required under the terms of the Credit
Agreement as modified hereby.
3. This Amendment is limited precisely as written and shall not be deemed
to be a consent to or waiver or modification of any other term or condition of
the Credit Agreement, the other Credit Documents or any of the instruments or
agreements referred to therein.
4. In order to induce the Banks to enter into this Amendment, each
Borrower hereby jointly and severally represents and warrants that (x) no
Default or Event of Default exists on the Sixth Amendment Effective Date (as
defined below) both before and after giving effect to this Amendment and (y) all
of the representations and warranties contained in the Credit Documents shall be
true and correct in all material respects on and as of the Sixth Amendment
Effective Date both before and after giving effect to this Amendment with the
same effect as though such representations and warranties had been made on and
as of the Sixth Amendment Effective Date (it being understood that any
representation or warranty made as of a specific date shall be true and correct
in all material respects as of such specific date).
5. This Amendment shall become effective on the date (the "Sixth
Amendment Effective Date"), on which (A) each Credit Party, the Required
Banks, BTCo and LaSalle National Bank shall have signed a counterpart hereof
(whether the same or different counterparts) and shall have
18
delivered (including by way of facsimile) the same to the Agent at its Notice
Office and (B) each of the following conditions precedent shall have been
satisfied to the satisfaction of the Agent and the Required Banks:
(i) All necessary governmental and third party consents and/or
approvals in connection with the transactions contemplated by this
Amendment (including, without limitation, the consent of the Banks required
to consent thereto under the terms of the Credit Agreement) shall have been
obtained and remain in effect, and all applicable waiting periods shall
have expired without any action being taken by any competent authority
which restrains, prevents or imposes materially adverse conditions upon,
the consummation of this Amendment. Additionally, there shall not exist any
judgment, order, injunction or other restraint prohibiting or imposing
materially adverse conditions upon the consummation of this Amendment or
the transactions contemplated hereby;
(ii) there shall have been delivered to the Agent new Revolving
Notes reflecting the revised Revolving Loan Commitments set forth on Annex
I hereto;
(iii) the Agent shall have received satisfactory opinions of legal
counsel (both U.S. and French) relating to this Amendment and the
transactions contemplated hereby as have been reasonably requested by the
Agent or the Required Banks;
(iv) the French Borrower shall have duly authorized, executed and
delivered a pledge agreement (as modified, amended or supplemented from
time to time in accordance with the terms thereof and of the Credit
Agreement, the "French Pledge Agreement") in form and substance
satisfactory to the Agent and the Required Banks;
(v) the French Borrower shall have duly authorized, executed and
delivered a security agreement (as modified, amended or supplemented from
time to time in accordance with the terms thereof and of the Credit
Agreement, the "French Security Agreement") in form and substance
satisfactory to the Agent and the Required Banks;
(vi) since December 31, 1997, nothing shall have occurred (and
neither the Agent nor the Required Banks shall have become aware of any
facts or conditions not previously known) which the Agent or the Required
Banks shall determine could have a material adverse effect on the rights or
remedies of the Banks or the Agent, or on the ability of Parent or any of
its Subsidiaries to perform their respective obligations to the Agent or
the Banks or which could have a Materially Adverse Effect;
(vii) no litigation by any entity (private or governmental) shall
be pending or threatened with respect to this Amendment or the transactions
contemplated hereby or any documentation executed in connection herewith,
or with respect to any material debt of Parent or its Subsidiaries which is
to remain outstanding after the consummation of this Amendment, or which
the Agent or the Required Banks shall determine could have a Material
Adverse Effect;
19
(viii) all agreements relating to, and the corporate and capital
structure of, Parent and its Subsidiaries, and all organizational documents
of such entities shall either not have changed since the Effective Date,
or, if changed, such changes shall be satisfactory to the Commitment
Parties;
(ix) all Loans made and Commitments outstanding pursuant to the
Credit Agreement shall be in full compliance with all applicable margin
regulations and, immediately after giving effect to this Amendment, there
shall exist no conflict with (i) any indebtedness of Parent or any of its
subsidiaries that is to remain outstanding or (ii) any material agreements
to which Parent or any of its subsidiaries is a party;
(x) the Agent shall have received a solvency certificate from
the chief financial officer of the US Borrower supporting the conclusion
that, after giving effect to this Amendment and the increase of the Total
Revolving Loan Commitment (computed as if the Total Unutilized Revolving
Loan Commitment were $0), Parent and its Subsidiaries, taken as a whole,
are not insolvent and will not be rendered insolvent by the indebtedness
incurred in connection therewith, and will not be left with unreasonably
small capital with which to engage in their business and will not have
incurred debts beyond their ability to pay such debts as they mature;
(xi) the US Borrower shall have paid all costs, fees, expenses
(including, without limitation, legal fees and expenses) and other
compensation payable to the Agent or the Banks to the extent due,
including, without limitation, a fee to each Bank which executes and
delivers a counterpart of this Amendment on or prior to December 4, 1998,
an amendment fee equal to 1/4 of 1% of the sum of (x) the aggregate
outstanding principal amount of such Bank's Term Loans and (y) the amount
of such Bank's Revolving Loan Commitment, in the case of each of clauses
(x) and (y) above calculated immediately prior to giving effect to this
Amendment; and
(xii) there shall not exist or be continuing any Default or Event
of Default under the Credit Agreement.
Unless the Agent has received actual notice from any Bank that the
conditions set forth above have not been satisfied, upon the satisfaction of the
conditions specified in clause (A) of the immediately preceding sentence and
upon the Agent's good faith determination that the other conditions described
above have been satisfied, the Sixth Amendment Effective Date shall be deemed to
have occurred, regardless of any subsequent determination that one or more of
the conditions thereto had not been satisfied (although the occurrence of the
Sixth Amendment Effective Date shall not release the Borrower from any liability
for failure to satisfy one or more of the conditions specified above). The
Agent will give the Borrower and each Bank prompt notice of the occurrence of
the Sixth Amendment Effective Date.
6. This Amendment may be executed in any number of counterparts and by the
different parties hereto on separate counterparts, each of which counterparts
when executed and delivered shall be an original, but all of which shall
together constitute one and the same instrument. A complete set of counterparts
shall be lodged with the Company and the Agent.
20
7. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER
SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF
NEW YORK.
8. From and after the Sixth Amendment Effective Date, all references in
the Credit Agreement and each of the Credit Documents to the Credit Agreement
shall be deemed to be references to the Credit Agreement as amended hereby.
* * *
21
IN WITNESS WHEREOF, each of the parties hereto has caused a
counterpart of this Amendment to be duly executed and delivered as of the date
first above written.
TRISTAR AEROSPACE CO.
By:
-----------------------------------
Title: Executive Vice President &
Chief Financial Officer
AEROSPACE ACQUISITION CORP.
By:
-----------------------------------
Title: Executive Vice President &
Chief Financial Officer
TRISTAR AEROSPACE, INC.
By:
-----------------------------------
Title: Executive Vice President &
Chief Financial Officer
TRISTAR AEROSPACE SARL
By
-----------------------------------
Title: President & Chief Executive Officer
BANKERS TRUST COMPANY,
Individually and as Administrative Agent
By:
-----------------------------------
Title: Vice President
LASALLE NATIONAL BANK
By:
-----------------------------------
Title:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ PRIME INCOME TRUST
By:
-----------------------------------
Title: Authorized Signatory
SENIOR DEBT PORTFOLIO
By: Boston Management and Research
as Investment Advisor
By:
-----------------------------------
Title: Vice President
KEYBANK N.A.
By:
-----------------------------------
Title: Vice President
PILGRIM AMERICA PRIME RATE TRUST
By: Pilgrim America Investments, Inc.
as its Investment Manager
By:
-----------------------------------
Title: Vice Presidemt
▇▇▇ ▇▇▇▇▇▇ AMERICAN CAPITAL
PRIME RATE INCOME TRUST
By:
-----------------------------------
Title: Senior Vice President & Director
-23-
ANNEX I
OUTSTANDING TERM LOANS AND COMMITMENTS
Bank Outstanding Revolving Loan
---- Term Loans Commitment
------------- ---------------
Bankers Trust Company $2,450,000.00 $20,000,000.00
LaSalle National Bank $0 $20,000,000.00
KeyBank N.A. $7,350,000.00 $10,000,000.00
Senior Debt Portfolio $14,749,494.95 $0
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ $9,800,000.00 $0
Prime Income Trust
▇▇▇ ▇▇▇▇▇▇ American Capital $7,840,000.00 $0
Prime Rate Trust
Pilgrim America Prime Rate $6,810,505.05 $0
Trust
-------------- --------------
Total $49,000,000.00 $50,000,000.00
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