Exhibit 10.111
AMENDMENT NO. 6, CONSENT AND LIMITED WAIVER
Dated as of February 4, 2004
to
FIFTH AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of July 12, 2002
This Amendment No. 6, Consent and Limited Waiver (this
"Amendment") dated as of February 4, 2004 is entered into among TMAS/ASI, INC.,
an Arkansas corporation formerly known as Aerocell Structures, Inc.
("Aerocell"), TRIAD INTERNATIONAL MAINTENANCE CORPORATION, a Delaware
corporation ("TIMCO"), AIRCRAFT INTERIOR DESIGN, INC., a Florida corporation
("Design"), TIMCO ENGINE CENTER, INC., a Delaware corporation ("Engine Center"),
and ▇▇▇▇▇ MANUFACTURING COMPANY, INC., a California corporation ("▇▇▇▇▇")
(Aerocell, TIMCO, Design, Engine Center and ▇▇▇▇▇ being collectively referred to
as the "Borrowers"), and TIMCO AVIATION SERVICES, INC., a Delaware corporation
("Parent"), AVIATION SALES DISTRIBUTION SERVICES COMPANY, a Delaware corporation
("Distribution"), AVS/M-2, INC., a Delaware corporation ("▇▇▇▇▇-▇▇▇▇▇"),
WHITEHALL CORPORATION, a Delaware corporation ("Whitehall"), AVS/M-3, INC., an
Arizona corporation ("Apex"), AVS/CAI, INC., a Florida corporation ("Caribe"),
AVIATION SALES LEASING COMPANY, a Delaware corporation ("Leasing"), AVIATION
SALES PROPERTY MANAGEMENT CORP., a Delaware corporation ("Property Management"),
AVS/M-1, INC., a Delaware corporation ("Manufacturing"), AVSRE, L.P., a Delaware
limited partnership ("AVSRE"), HYDROSCIENCE, INC., a Texas corporation
("Hydroscience"), TIMCO ENGINEERED SYSTEMS, INC., a Delaware corporation
("Engineered Systems") (Parent, Distribution, ▇▇▇▇▇-▇▇▇▇▇, Whitehall, Apex,
Caribe, Leasing, Property Management, Manufacturing, AVSRE, Hydroscience and
Engineered Systems being collectively referred to as the "Guarantors"), the
"Lenders" (as defined in the Credit Agreement identified below) a party hereto
and Citicorp USA, Inc., in its capacity as agent for the Lenders and the
"Issuing Banks" (as defined in the Credit Agreement identified below) (in such
capacity, the "Agent"). Capitalized terms used herein without definition are
used herein as defined in the Credit Agreement.
PRELIMINARY STATEMENTS:
WHEREAS, Borrowers, Parent, the Agent and certain financial
institutions, as Lenders and Issuing Banks, are parties to that certain Fifth
Amended and Restated Credit Agreement dated as of July 12, 2002 (as amended,
supplemented or otherwise modified through the date hereof, the "Credit
Agreement");
WHEREAS, the Borrowers have requested the Agent and the
Lenders to extend the Revolving Credit Termination Date and the maturity date
for the Term Loan to July 31, 2004 and to provide other amendments to the Credit
Agreement, all as more fully set forth herein;
WHEREAS, the Parent and Borrowers have requested that the
Lenders consent to the execution and delivery by the Borrowers and the
Guarantors of the New LJH Note Documents (as defined below) to, among other
things, re-evidence the Shareholder Subrogation Claims arising with respect to
the retirement of the Indebtedness evidenced by the BofA Shareholder Supported
Note;
WHEREAS, the Specified Events of Default (as defined in
Section 2.2 below) have occurred and are continuing, and the Parent and the
Borrowers have requested that the Agent and the Lenders waive their rights and
remedies with respect to the Specified Events of Default; and
WHEREAS, the Lenders are willing to grant such limited
waivers, consent and to amend the Credit Agreement, in each case on the terms
and conditions set forth herein;
NOW, THEREFORE, the parties hereto hereby agree as follows:
SECTION 1. Amendments to the Credit Agreement. Upon the "Amendment
Effective Date" (as such term is defined below), the Credit Agreement is hereby
amended as follows effective as of the Amendment Effective Date:
1.1 Section 1.01 of the Credit Agreement is hereby amended as
follows:
(a) The definition of "Borrowing Base" is hereby amended
(i) to add "and ▇▇▇▇▇" immediately following the reference to "Design"
in clause (vii) thereof and (ii) to amend and restate clause (xiii) of
such definition in its entirety to read as follows:
"(xiii) the Extension Reserve on such date; minus"
(b) The definition of "Eligible Inventory" is hereby
amended as follows:
(i) To delete clause (6) in its entirety and to
replace such clause with the following clause:
"(6) goods of Distribution which (A) as of the
Effective Date, were acquired in or prior to 1997,
(B) as of November 30, 2002, were acquired in or
prior to 1998, (C) as of November 30, 2003, were
acquired in or prior to 1999 or (D) as of November
30, 2004, were acquired in or prior to 2000; or"
(ii) To delete the proviso at the end of the
definition of "Eligible Inventory" immediately following
clause (7) in its entirety and to replace such proviso with
the following proviso:
"provided, however, that in the case of Inventory of
any Borrower located at the Goodyear Facility, such
Inventory shall not constitute Eligible Inventory
until the Agent's receipt of the landlord waivers
required to be delivered by the Sixth Amendment (in
the case of Inventory located at the
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Goodyear Facility) within 60 days after the Sixth
Amendment Effective Date; provided, further, that
Inventory of ▇▇▇▇▇ located at ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ shall not constitute
"Eligible Inventory"."
(c) The following definition of "Extension Reserve" is
added in proper alphabetical order:
"Extension Reserve" means, on any date of
determination, the amount set forth below opposite such date:
Date Refinancing Reserve
---- -------------------
From the Sixth Amendment Effective Date until $ 0
February 28, 2004
From February 29, 2004 until March 30, 2004 $ 125,000
From March 31, 2004 until April 29, 2004 $ 250,000
From April 30, 2004 until May 30, 2004 $ 375,000
From and after May 31, 2004 $ 500,000
(d) The definition of "LJH Intercreditor Agreement" is
amended and restated in its entirety to read as follows:
"LJH Intercreditor Agreement" shall mean,
collectively, (i) that certain Amended and Restated
Intercreditor Agreement dated as of the Fourth Amendment
Effective Date to which the Agent, Citicorp USA, Inc., Bank of
America, N.A., and LJH, Ltd. are parties, acknowledged by the
Borrowers and the Guarantors; and (ii) that certain
Intercreditor Agreement dated as of the Sixth Amendment
Effective Date to which the Agent, Citicorp USA, Inc., and
LJH, Ltd. are parties, acknowledged by the Borrowers and the
Guarantors.
(e) The definition of "LJH Note" is amended and restated
in its entirety to read as follows:
"LJH Note" shall mean, collectively, (i)
that certain Term Promissory Note in the original principal
amount of $7,350,000 dated the Fourth Amendment Effective Date
executed by the Parent in favor of LJH, Ltd., together with
all increases thereon or additional notes issued in respect of
(a) after the Agent's receipt and review of the Fourth
Amendment Appraisals with respect to the Inventory acquired by
LJH, Ltd. from Aviation Management Systems, Inc. and sold by
LJH, Ltd. to TIMCO on the Fourth Amendment Effective Date, an
increase in the purchase price for such Inventory in an amount
not to exceed the lesser of (I) the Fair Market Value of such
Inventory less $50,000 and (II)
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$900,000 or (b) accrued interest on such Term Promissory Note
and on such additional notes (all of which shall be payable in
kind but not in cash), together with the side letter dated the
Fourth Amendment Effective Date between the Parent, TIMCO and
LJH, Ltd. with respect to the increases in the principal
amount described in clause (b) above; and (ii) that certain
Term Promissory Note in the principal amount of $5,000,000
dated as of January 30, 2004 executed by the Parent in favor
of LJH, Ltd., in each case the obligations under which are
subordinated in right of payment to the Obligations pursuant
to the applicable LJH Intercreditor Agreement.
(f) The definition of "LJH Note Documents" is amended and
restated in its entirety to read as follows:
"LJH Note Documents" shall mean the LJH
Note, the guaranty agreements executed by the Borrowers and
the Guarantors (other than the Parent) with respect thereto,
the Shareholder Security Agreement, the LJH 2004 Security
Agreement and any other agreements, documents and instruments
executed in connection with any of the foregoing.
(g) The definition of "LJH 2004 Security Agreement" is
added in proper alphabetical order:
"LJH 2004 Security Agreement" means that
certain Security Agreement dated as of January 30, 2004 to
which LJH, Ltd. (as secured party) and the Borrowers and
Guarantors (as grantors) are parties.
(h) The definition of "Projections" is hereby amended to
replace the reference to the year "2003" with the year "2004".
(i) The definition of "Revolving Credit Termination Date"
is hereby amended to delete the reference to "5:00 p.m. (New York time)
on February 4, 2004" appearing therein in its entirety and to replace
such reference with the date "July 31, 2004".
(j) The definition of "Shareholder Subrogation Claims" is
amended and restated in its entirety to read as follows:
"Shareholder Subrogation Claims" means those
claims against the Borrowers and Guarantors, if any, of ▇▇▇ ▇.
▇▇▇▇▇▇▇ and LJH, Ltd. arising in the event such Persons are
subrogated to the rights of Bank of America, N.A. with respect
to Indebtedness evidenced by the BofA Note by virtue of the
performance of their obligations under the Shareholder
Guarantees, which claims, after January 30, 2004, are
evidenced by the promissory note described in clause (ii) of
the definition of LJH Note.
(k) The following definition of "Sixth Amendment" is
added in proper alphabetical order:
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"Sixth Amendment" shall mean Amendment No.
6, Consent and Limited Waiver dated as of February 4, 2004 to
Fifth Amended and Restated Credit Agreement dated as of July
12, 2002 among the Borrowers, the Guarantors, the Agent and
the Lenders.
(l) The following definition of "Sixth Amendment
Effective Date" is added in proper alphabetical order:
"Sixth Amendment Effective Date" shall mean
the "Amendment Effective Date" under (and as defined in) the
Sixth Amendment.
(m) The definition of "Tangible Net Worth" is hereby
deleted in its entirety and such definition is hereby replaced with the
following definition:
"Tangible Net Worth" means the amount
calculated as (i) the consolidated net worth of the Parent and
its Subsidiaries minus (ii) the consolidated intangibles of
the Parent and its Subsidiaries including, without limitation,
goodwill, trademarks, tradenames, copyrights, patents, patent
applications, licenses and rights in any thereof and other
items treated as intangibles in accordance with GAAP. For
purposes of determination of Tangible Net Worth, the PIK
Subordinated Debt shall be deemed to be equity so long as no
interest with respect thereto has been paid in cash.
1.2 Section 2.01(a)(ii)(A) of the Credit Agreement is hereby
amended to delete such section in its entirety and to replace such Section
2.01(a)(ii)(A) with the following:
"(A) On and after the Sixth Amendment Effective Date,
the principal amount of the Term Loan shall be repaid
in (I) one (1) installment in the amount of $500,000
on May 31, 2004, and (II) one final installment of
$3,000,000 on July 31, 2004; provided however that in
the event the Revolving Credit Termination Date
occurs prior to July 31, 2004, the then outstanding
principal balance of the Term Loan shall be due and
payable on the Revolving Credit Termination Date. All
payments made with respect to the Term Loan shall be
shared by the Lenders in accordance with their
respective Pro Rata Shares."
1.3 Section 2.01(d) of the Credit Agreement is hereby amended to
delete the reference to "5:00 p.m. (New York time) on February 4, 2004"
appearing therein in its entirety and to replace such reference with the date
"July 31, 2004".
1.4 Section 5.02 of the Credit Agreement is hereby amended to
amend and restate subsection (d):
(d) Other Fees. The Borrowers shall pay (i) to the
Agent, in addition to any other fee referenced in
this Agreement, those certain fees described in the
Fee Letter and (ii) in the event that all Obligations
hereunder are not repaid or otherwise refinanced in
full in cash (or, in the case of letters of credit,
cash management obligations and contingent
obligations, cash
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collateralized or otherwise supported by a letter of
credit or otherwise in a manner acceptable to the
Agent in its sole discretion) on any date set forth
below, a facility extension fee on such date, in
immediately available funds, to the Agent for the
ratable benefit of the Lenders, in an amount equal to
the amount set forth opposite such date, which shall
be thereupon fully earned and non-refundable:
Determination Date Facility Extension Fee
------------------ ----------------------
February 27, 2004 $ 75,000
April 30, 2004 $ 125,000
May 28, 2004 $ 100,000
1.5 Section 8.01(f)(i) of the Credit Agreement is hereby amended
to delete each reference to the year "2003" appearing therein and to replace
each such reference with "2004".
1.6 Section 10.03(e) of the Credit Agreement is hereby amended and
restated in its entirety to read as follows:
"(e) Liens created to secure the LJH
Note Documents pursuant to (i) the Shareholder Security
Agreement on the Fourth Amendment Effective Date and (ii) the
LJH 2004 Security Agreement on January 30, 2004;
1.7 Section 10.05(d) of the Credit Agreement is hereby amended and
restated in its entirety to read as follows:
"(d) Accommodation Obligations evidenced
by the LJH Note Documents and by the Junior Subordinated Note
Guaranties;
1.8 Section 11.01 of the Credit Agreement is hereby amended to add
the following rows of text under the headings "Determination Date", "Applicable
Period" and "Minimum Amount":
March 31, 2004 Four Fiscal Quarter period then ending $ 11,800,000
June 30, 2004 Four Fiscal Quarter period then ending $ 11,700,000
1.9 Section 11.02 of the Credit Agreement is hereby amended to add
the following row of text under the headings "Determination Date", "Applicable
Period" and "Maximum Amount":
June 30, 2004 Two Fiscal Quarter period then ending $ 1,250,000
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1.10 Section 11.03 of the Credit Agreement is hereby amended to add
the following rows of text under the headings "Determination Date", "Applicable
Period" and "Minimum Ratio":
March 31, 2004 Four Fiscal Quarter period then ending 1.0 to 1.0
June 30, 2004 Four Fiscal Quarter period then ending 1.45 to 1.0
1.11 Section 11.04 of the Credit Agreement is hereby amended to add
the following rows of text under the headings "Determination Date", "Applicable
Period" and "Minimum Amount":
March 31, 2004 Fiscal Quarter period then ending $ 1,520,000
June 30, 2004 Fiscal Quarter period then ending $ 1,020,000
1.12 Section 12.02(b) of the Credit Agreement is hereby amended to
delete such section in its entirety and to replace such section with the
following section:
"(b) Deposit for Letters of Credit. In addition,
(i) with respect to all Letter of Credit Obligations,
after the occurrence and during the continuance of an
Event of Default, the Borrowers shall, promptly upon
demand by the Agent, deliver to the Agent, (A) Cash
Collateral in such form as requested by the Agent for
deposit in the Cash Collateral Account or (B) a
letter of credit or other instrument of support
acceptable to the Agent in its sole discretion,
together with such endorsements, and execution and
delivery of such documents and instruments as the
Agent may request in order to perfect or protect the
Agent's Lien with respect thereto, in an aggregate
principal amount equal to 105% of such then
outstanding Letter of Credit Obligations; and
(ii) with respect to Letter of Credit Obligations
under Letters of Credit with expiration dates
occurring after the Revolving Credit Termination
Date, five (5) Business Days prior to the Revolving
Commitment Termination Date, the Borrowers shall,
promptly upon demand by the Agent, deliver to the
Agent, (A) Cash Collateral in such form as requested
by the Agent for deposit in the Cash Collateral
Account or (B) a letter of credit or other instrument
of support acceptable to the Agent in its sole
discretion, together with such endorsements, and
execution and delivery of such documents and
instruments as the Agent may request in order to
perfect or protect the Agent's Lien with respect
thereto, in an aggregate principal amount equal to
105% such then outstanding Letter of Credit
Obligations. "
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1.13 Section 15.07(b) of the Credit Agreement is hereby amended (a)
to delete the word "and" appearing at the end of clause (viii) of such section,
(b) to delete the period appearing at the end of clause (ix) of such section and
to replace such period with a comma followed by the word "and", and (c) to add
the following clause (x) to the end of such section:
"(x) amendment of, or waiver of any Potential Event of Default
or Event of Default arising solely as a result of
noncompliance with, any financial covenant set forth in
Sections 11.01, 11.03 or 11.04 hereof, occurring as of March
31, 2004."
SECTION 2. Consent; Limited Waiver; Post-Closing Deliveries.
2.1 Upon the Amendment Effective Date, the Lenders hereby consent
to the execution and delivery by the Borrowers and the Guarantors of the LJH
Note Documents dated the Amendment Effective Date to, among other things,
re-evidence the Shareholder Subrogation Claims arising with respect to the
retirement of the Indebtedness evidenced by the BofA Shareholder Supported Note
(the "New LJH Note Documents").
2.2 Upon the Amendment Effective Date, the Lenders hereby waive
their rights and remedies with respect to (and solely with respect to) the
following Events of Default under the Credit Agreement (the "Specified Events of
Default"): (i) the Parent and ▇▇▇▇▇ failed to obtain a landlord waiver from the
landlord of the leased premises located at ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ within 30 days after the Fourth Amendment Effective Date as
required by Section 2.2 of the Fourth Amendment, Consent and Waiver dated as of
May 14, 2003, and (ii) TIMCO failed to obtain a landlord waiver from each of
LJH, Ltd. and the City of Phoenix with respect to the Goodyear Facility within
30 days (in the case of LJH, Ltd.) and 60 days (in the case of the City of
Phoenix) after the Fourth Amendment Effective Date; provided, that such landlord
waivers described in clause (ii) of this Section 2.2 shall be delivered to the
Agent in form and substance acceptable to the Agent within 60 days of the
Amendment Effective Date.
SECTION 3. Conditions Precedent. This Amendment shall become effective
as of the date hereof (the "Amendment Effective Date") upon the satisfaction of
the following conditions precedent:
3.1 The Agent shall have received:
(a) a facsimile or original executed copy of this
Amendment executed by the Parent, each Borrower, each Guarantor, each
Lender and the Agent;
(b) corporate resolutions of the Parent, Borrowers and
Guarantors authorizing the execution and delivery of this Amendment and
all instruments and documents required to be executed and delivered in
connection herewith;
(c) the documents set forth on Exhibit A attached hereto
and made a part hereof, in form and substance satisfactory to the Agent
and the Lenders;
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(d) the Projections for each Fiscal Quarter ending in
2004, in form and substance satisfactory to the Agent and Lenders;
(e) all agreements, documents and instruments delivered
to the obligees under the TROL Documents as a result of this Amendment,
if any, in form and substance satisfactory to the Agent;
(f) an amendment fee, for the ratable benefit of the
Lenders, equal to $50,000 in immediately available funds, which shall
be fully earned and non-refundable upon the effectiveness of this
Amendment;
(g) payment of the expenses of the Agent in the amounts
identified on Exhibit B attached hereto and made part hereof;
(h) the New LJH Note Documents and a pay-off letter and
release of Liens with respect to the BofA Documents, each in form and
substance satisfactory to the Agent; and
(i) such other agreements, documents, instruments,
certificates and opinions as the Agent may reasonably request.
3.2 After giving effect to this Amendment,
(a) no "Potential Event of Default" or "Event of Default"
shall have occurred and be continuing under the terms of the Credit
Agreement; and
(b) all of the representations and warranties in this
Amendment shall be true and correct in all material respects.
SECTION 4. Representations and Warranties; Reaffirmation.
4.1 Parent and each of the Borrowers hereby represents and
warrants that:
(a) This Amendment and the Credit Agreement as previously
executed and delivered and as amended and supplemented hereby
constitute legal, valid and binding obligations of the Parent and the
Borrowers and are enforceable against the Parent and the Borrowers in
accordance with their terms.
(b) After giving effect to this Amendment, no Event of
Default or Potential Event of Default exists or would result from any
of the transactions contemplated by this Amendment.
(c) No event of default or default has occurred and is
continuing under the terms of (a) any of the TROL Documents, (b) under
any of the agreements and documents executed with respect to the Senior
Subordinated Notes or under which the Senior Subordinated Notes have
been issued, (c) under any of the agreements and documents executed
with respect to the BofA Note, (d) under any of the agreements and
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documents executed with respect to the Junior Subordinated Notes or
under which the Junior Subordinated Notes have been issued or (e) any
of the LJH Note Documents.
(d) None of the holders of the Senior Subordinated Notes,
the trustee under the Indenture under which the Senior Subordinated
Notes were issued, the holders of the Junior Subordinated Notes, the
trustee under the Indenture under which the Junior Subordinated Notes
were issued, the obligees under the TROL Documents (or Person acting on
any such obligee's behalf), the obligees under the BofA Note (except in
connection with the repayment by LJH, Ltd. under its Shareholder
Guaranty executed in connection therewith) or any of the agreements and
documents executed in connection therewith, the obligees under the LJH
Note Documents or any other agent or lender under any credit facility
for the Borrowers or Guarantors shall have commenced the exercise of
any remedies with respect to any default or event of default with
respect thereto.
(e) All obligations under the BofA Note Documents have
been satisfied.
4.2 Parent, each of the Borrowers and each of the Guarantors
hereby reaffirm all covenants, representations and warranties made by it, and
all Obligations owing by it, pursuant to the Credit Agreement (to the extent the
same are not amended hereby), the Notes and the other Loan Documents to which it
is a party and agree that all such covenants, representations and warranties
shall be deemed to have been remade as of the date this Amendment becomes
effective (unless a representation and warranty is stated to be given on and as
of a specific date, in which case such representation and warranty shall be
true, correct and complete as of such date).
SECTION 5. Reference to and Effect on the Credit Agreement.
5.1 Upon the effectiveness of this Amendment, each reference in
the Credit Agreement to "this Agreement", "hereunder", "hereof", "herein" or
words of like import shall mean and be a reference to the Credit Agreement, as
amended hereby, each reference to the Credit Agreement in any other document,
instrument or agreement executed and/or delivered in connection with the Credit
Agreement shall mean and be a reference to the Credit Agreement as amended
hereby.
5.2 Except as expressly set forth herein, neither this Amendment,
nor any actions taken by any Lenders or the Agent shall be deemed or construed
as an amendment of the Loan Documents, or a waiver with respect to any Potential
Event of Default or Event of Default, whether now existing or occurring after
the date hereof, known or unknown, under the Loan Documents. Except as
specifically amended or agreed above, each of the Parent, the Borrowers and the
Guarantors hereby agree that the Credit Agreement, the Notes and all other Loan
Documents shall remain in full force and effect and are hereby ratified and
confirmed.
5.3 The execution, delivery and effectiveness of this Amendment
shall not operate as a waiver of any right, power or remedy of any Lender or
Issuing Bank or the Agent under the Credit Agreement, the Notes or any of the
other Loan Documents, nor constitute a waiver of any provision contained
therein, except as specifically set forth herein.
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5.4 No course of dealing on the part of the Agent or any of the
Lenders, or any such party's officers or representatives, nor any failure or
delay in the exercise of any right by any Lender or the Agent shall operate as a
waiver thereof, and any single or partial exercise of any such right shall not
preclude any later exercise of such right. Further, any failure by any Lender or
the Agent at any time to require strict performance by the Parent, any Borrower
or any of their respective Subsidiaries of any provision of the Loan Documents
shall not affect any right of any Lender or the Agent thereafter to demand
strict compliance and performance thereunder. Without limiting the generality of
the foregoing, nothing in this letter agreement shall obligate the Agent or any
Lender to agree to any similar waiver of any Default or Event of Default in the
future.
SECTION 6. Release.
6.1 The Borrowers and the Guarantors acknowledge that they have no
existing defense, counterclaim, offset, cross-complaint, claim or demand of any
kind or nature whatsoever that can be asserted to reduce or eliminate all or any
part of the Obligations. In consideration for the execution of this Amendment,
each Borrower and each Guarantor hereby releases and forever discharges the
Agent and the other Holders and Citicorp USA, Inc., as holder of the
Supplemental Term Loan Warrant, and all of their respective officers, directors,
employees, Affiliates and agents (collectively, the "Released Parties") from any
and all actions, causes of action, debts, dues, claims, demands, liabilities and
obligations of every kind and nature, both in law and in equity, known or
unknown, whether heretofore or now existing, liquidated or unliquidated, matured
or unmatured, fixed or contingent (collectively, the "Release Claims"), which
might be asserted against any of the Released Parties. This Release applies to
all matters arising out of or relating to any of the Loan Documents, the
Supplemental Term Loan Warrant, any Property of any Borrower or any Guarantor,
the LJH Note Documents, or any Obligations, commitment letters with respect to
other loan facilities, and the lending and borrowing relationships, and (to the
extent any Release Claims relating to such deposit relationships are now known
to any Borrower or any Guarantor or any of their Subsidiaries) the deposit
relationships, between Parent or its Subsidiaries, and Citibank, N.A., the Agent
and the Holders, including the administration, collateralization and funding
thereof. Each of Parent and each of its Subsidiaries further agrees not to bring
any action in any judicial, administrative or other proceeding against the
Released Parties, or any of them, alleging any such Release Claim or otherwise
arising in connection with any such Release Claim. Without limiting the
generality of the foregoing, Parent and its Subsidiaries release any claims they
may have for any overpayment of interest or Rent prior to the date hereof, and
agree that any such claim shall be deemed a Release Claim for the purpose of
this Amendment.
6.2 It is the intent of the parties that except as otherwise set
forth herein, the foregoing release shall be effective as a full and final
accord and satisfaction of all claims hereby released and each of Parent and
each of its Subsidiaries hereby agrees, represents and warrants that the matters
released herein are not limited to matters which are known or disclosed. In this
connection, each of Parent and each of its Subsidiaries hereby agrees,
represents and warrants that it realizes and acknowledges that factual matters
now existing and unknown to it may have given or may hereafter give rise to
Release Claims, which are presently unknown, unsuspected, unliquidated,
unmatured and/or contingent, and it further agrees, represents and warrants that
this release has been negotiated and agreed upon in view of that realization.
Nevertheless, Parent and
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its Subsidiaries hereby intend to release, discharge and acquit the Released
Parties of and from any such unknown, unsuspected, unliquidated, unmatured
and/or contingent Release Claims, which are in any way set forth in or related
to the matters identified above in this Section 6. Parent and its Subsidiaries
hereby explicitly waive the benefits of any common law or statutory rule with
respect to the release of such Release Claims.
6.3 The acceptance and delivery of this Amendment by the Agent and
the Lenders on behalf of the Released Parties shall not be deemed or construed
as an admission of liability with respect to the Release Claims or otherwise by
the Released Parties, or any of them, and the Released Parties hereby expressly
deny liability of any nature whatsoever arising from or related to the subject
of the release contained in this Section 6.
6.4 Each of Parent and each of its Subsidiaries hereby agrees,
represents and warrants that: (i) such party has not voluntarily, by operation
of law or otherwise, assigned, conveyed, transferred or encumbered, either
directly or indirectly, in whole or in part, any right to or interest in any of
the Release Claims purported to be released by this Section 6; (ii) such party
has had advice of counsel of its own choosing in negotiations for and the
preparation of this Amendment; and (iii) such party is fully aware of the effect
of releases such as that contained in this Section 6.
SECTION 7. Execution in Counterparts. This Amendment may be executed in
any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed and delivered shall be deemed to be
an original and all of which taken together shall constitute but one and the
same instrument. Delivery of an executed counterpart of this Amendment by
telecopier shall be effective as delivery of a manually executed counterpart of
this Amendment.
SECTION 8. Governing Law. This Amendment shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 9. Miscellaneous. This Amendment is a Loan Document. Section
headings in this Amendment are included herein for convenience of reference only
and shall not constitute a part of this Amendment for any other purpose.
[Remainder of Page Intentionally Left Blank]
12
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed by their respective officers thereunto duly authorized
as of the date first above written.
Agent and Lenders:
CITICORP USA, INC., CITIGROUP FINANCIAL PRODUCTS INC.
as Agent and as a Lender and as holder of (f/k/a Salomon Brothers Holding
the Supplemental Term Loan Warrant Company, Inc.)
By:______________________________ By:______________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Name:
Vice President Title:
UPS CAPITAL CORPORATION ARK CLO 2000-1, LIMITED
By: Patriarch Partners, LLC,
its Collateral Manager
By:______________________________
Name:
Title: By:______________________________
Name:
Title:
Borrowers and Guarantors:
TMAS/ASI, INC.(formerly known as Aerocell TRIAD INTERNATIONAL MAINTENANCE
Structures, Inc.) CORPORATION
By:____________________________________ By:______________________________________
C. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ C. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Vice President and Chief Financial Officer Vice President and Chief Financial Officer
AIRCRAFT INTERIOR DESIGN, INC. TIMCO ENGINE CENTER, INC.
By:____________________________________ By:______________________________________
C. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ C. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Vice President and Chief Financial Officer Vice President and Chief Financial Officer
TIMCO AVIATION SERVICES, INC. AVIATION SALES DISTRIBUTION
SERVICES COMPANY
By:____________________________________ By:______________________________________
C. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ C. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Vice President and Chief Financial Officer Vice President and Chief Financial Officer
AVS/M-2, INC. WHITEHALL CORPORATION
By:____________________________________ By:______________________________________
C. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ C. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Vice President and Chief Financial Officer Vice President and Chief Financial Officer
AVS/M-3, INC. AVS/CAI, INC.
By:____________________________________ By:______________________________________
C. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ C. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Vice President and Chief Financial Officer Vice President and Chief Financial Officer
AVIATION SALES LEASING COMPANY AVIATION SALES PROPERTY
MANAGEMENT CORP.
By:____________________________________ By:______________________________________
C. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ C. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Vice President and Chief Financial Officer Vice President and Chief Financial Officer
AVS/M-1, INC. AVSRE, L.P.
By: Aviation Sales Property Management
Corp. as General Partner
By:____________________________________
C. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Vice President and Chief Financial Officer By:______________________________________
C. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Vice President and Chief Financial Officer
HYDROSCIENCE, INC. TIMCO ENGINEERED SYSTEMS, INC.
By:____________________________________ By:______________________________________
C. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ C. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Vice President and Chief Financial Officer Vice President and Chief Financial Officer
▇▇▇▇▇ MANUFACTURING COMPANY, INC.
By:____________________________________
C. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Vice President and Chief Financial Officer