Amendment and Consent Agreement No. 10 to Lease and Related Operative Agreements among Aviation Sales Company, Wells Fargo Bank Northwest, Bank of America, and Others
Summary
This agreement, dated May 24, 2001, is an amendment to a lease and related financial agreements among Aviation Sales Company, Wells Fargo Bank Northwest (as Owner Trustee), Bank of America (as Lender and Agent), and other parties. It extends deadlines for certain conditions related to the sale of a subsidiary, updates references to involved parties, and provides consent for amendments to an existing credit agreement. The parties confirm their financial statements and representations remain accurate, and that no default has occurred as a result of this amendment.
EX-10.6 7 dex106.txt AMENDMENT AND CONSENT AGREEMENT NO. 10 Exhibit 10.6 Amendment and Consent Agreement No. 10 for Lease Agreement and Certain Other Operative Agreements THIS AMENDMENT AND CONSENT AGREEMENT NO. 10 (this "Amendment Agreement") is made and entered into as of the 24/th/ day of May, 2001, by and among AVIATION SALES COMPANY, a Delaware corporation ("Aviation Sales"), as Construction Agent (the "Construction Agent"); AVIATION SALES COMPANY, as Lessee (the "Lessee"); WELLS FARGO BANK NORTHWEST, NATIONAL ASSOCIATION, a national banking association, f/k/a First Security Bank, National Association, not individually, except as expressly stated in the Operative Agreements, but solely as Owner Trustee under the Aviation Sales Trust 1998-1 (the "Owner Trustee"); BANK OF AMERICA, N.A., successor to NationsBank, National Association ("Bank of America"), as a Holder and as a Lender; BANK OF AMERICA, N.A., successor to NationsBank, National Association, as Administrative Agent (the "Agent"); each of the holders party to the Trust Agreement (defined below) (the "Holders"); each of the Lenders party to the Credit Agreement (defined below)(the "Lenders"); and each of the Guarantors party to the Guaranty Agreement (defined below). W I T N E S S E T H: ------------------- WHEREAS, the Construction Agent, the Lessee, the Owner Trustee, the Agent, the Lenders and the Holders have entered into the Participation Agreement dated as of December 17, 1998 (as amended, the "Participation Agreement"); and WHEREAS, the Owner Trustee, the Lenders and the Agent have entered into the Credit Agreement dated as of December 17, 1998 (as amended, the "Credit Agreement"); and WHEREAS, the Holders and the Owner Trustee have entered into the Amended and Restated Trust Agreement dated as of December 17, 1998 (as amended, the "Trust Agreement"); and WHEREAS, the Owner Trustee and the Lessee have entered into the Lease Agreement dated as of December 17, 1998 (as amended, the "Lease" or "Lease Agreement"); and WHEREAS, Aviation Sales, Subsidiaries of Aviation Sales, and the Agent have entered into the respective Guaranty Agreements (Series A Obligations) dated as of December 17, 1998, February 18, 2000, March 31, 2000 or May 31, 2000, as the case may be, (collectively, the "Series A Guaranty Agreement"); and the Subsidiaries of Aviation Sales and the Owner Trustee have entered into the respective Guaranty Agreements (Lessee Obligations) dated as of December 17, 1998, February 18, 2000, March 31, 2000 or May 31, 2000, as the case may be, (collectively, the "Lessee Guaranty Agreement", and collectively with the Series A Guaranty Agreement and any other Guaranty Agreement (as defined in the Participation Agreement), the "Guaranty Agreement" or "Guaranty"); and WHEREAS, the Lessee desires its Subsidiary, Caribe Aviation, Inc. ("Caribe"), to complete the Caribe Sale; and WHEREAS, in connection with the Caribe Sale, the Lessee needs additional time to satisfy the conditions precedent to the Caribe Sale; and WHEREAS, the parties hereto desire to amend the Lease Agreement and certain other Operative Agreements in the manner herein set forth; NOW, THEREFORE, the Construction Agent, the Lessee, the Owner Trustee, the Holders, the Agent and the Lenders do hereby agree as follows: 1. Definitions. The terms "Participation Agreement", "Lease" and "Lease ----------- Agreement" as used herein and in the Operative Agreements (as defined in the Participation Agreement) shall mean such agreements as hereby amended and modified, and as further amended, modified, supplemented or restated from time to time in accordance with the terms thereof. Unless the context otherwise requires, all terms used herein without definition shall have the definition provided therefor in the Participation Agreement. 2. Amendments to the Participation Agreement and the Lease Agreement. The ----------------------------------------------------------------- Participation Agreement and the Lease Agreement are hereby amended as follows: (a) Appendix A to the Participation Agreement is amended by adding the following definition, in the appropriate alphabetical order. " `Amendment No. 10' shall mean Amendment and Consent Agreement ---------------- No. 10 for Lease Agreement and certain other Operative Agreements dated as of May 24, 2001, among the Construction Agent, the Lessee, the Owner Trustee, the Agent, the Holders and Lenders party thereto and the Guarantors party thereto." (b) Section 5(b) of Amendment No. 9 is hereby amended to extend the ------------ date by which the conditions precedent to Sections 1, 2 or 3 of Amendment ------------------ No. 9 (other than Section 3(c)) can be satisfied to June 1, 2001. ------------ (c) The references to "Hamilton Sundstrand Corporation" contained in the sixth and seventh "WHEREAS" clauses, Section 2(c), Section 5(b)(xiii) ------------ ------------------ and Section (5)(b)(xv) of Amendment No. 9 are hereby amended, in each case, ------------------ to delete the phrase "Hamilton Sundstrand Corporation" and to insert in its place "Hamilton Sundstrand Service Corporation". 3. Consent. Subject to the Agent's receipt of the amendment referenced in ------- Section 5(a)(ii) below, the Agent, the Owner Trustee, the Lenders and the - ---------------- Holders hereby consent to the amendment of the Existing Aviation Sales Credit Agreement on the terms and conditions referenced on or attached hereto as Exhibit A and made a part hereof. - --------- 4. Representations, Warranties and Covenants. The Lessee and the ----------------------------------------- Construction Agent hereby represent, warrant and covenant that: 2 (a) The representations and warranties made by the Lessee and the Construction Agent in Section 7 (other than in Section 7.3(f)(i)) of the Participation Agreement are true on and as of the date hereof and the Caribe Amendment Effective Date (as defined in Amendment No. 9); and the representations in warranties set forth in Section 7.3(f)(i) of the Participation Agreement are true on and as of the date set forth in such Section; (b) The audited consolidated financial statements of each of the Construction Agent and the Lessee as of December 31, 2000, copies of which have been furnished to the Agent and the Owner Trustee, were prepared in accordance with GAAP and fairly present the financial condition of each of the Construction Agent and the Lessee and their Subsidiaries on a consolidated basis as of such date and their consolidated results of operations for the fiscal year then ended. Neither Aviation Sales nor any Guarantor or any Subsidiary of Aviation Sales has as of the date hereof (or will have on the Caribe Amendment Effective Date) any Accommodation Obligation, contingent liability or liability for any taxes, long-term leases or commitments, not disclosed in writing to the Agent, the Lenders and the Holders prior to the date hereof. (c) The business and properties of the Lessee and the Construction Agent and the Guarantors and the Subsidiaries of Aviation Sales are not, and since the Initial Closing Date have not been, adversely affected in any substantial way as the result of any fire, explosion, earthquake, accident, strike, lockout, combination of workmen, flood, embargo, riot, activities of armed forces, war or acts of God or the public enemy, or cancellation or loss of any major contracts; (d) No event has occurred and no condition exists on the date hereof (or will exist on the Caribe Amendment Effective Date) which, after giving effect to this Amendment Agreement, constitutes or will constitute a Default or an Event of Default on the part of the Lessee or the Construction Agent or any Guarantor or any Subsidiary of Aviation Sales under the Participation Agreement or any other Operative Agreement, either immediately or with the lapse of time or the giving of notice, or both. Since December 31, 2000, no event has occurred (or will occur on or before the Caribe Amendment Effective Date) with respect to the Lessee, the Construction Agent or any Guarantor or any Subsidiary of Aviation Sales which has resulted, or is reasonably likely to result, in a Material Adverse Effect. (e) There is as of the date hereof (and there will be on the Caribe Amendment Effective Date) no action, suit, proceeding, claim, investigation or arbitration before or by any Governmental Authority or private arbitrator pending or, to the knowledge of Aviation Sales, threatened against Aviation Sales, any Guarantor or any Subsidiary of Aviation Sales or any of their respective Assets (i) challenging the validity or the enforceability of any of the Operative Agreements, (ii) which will, or is reasonably likely to, result in any Material Adverse Effect, or (iii) under the Racketeering Influenced and Corrupt Organizations Act or any similar federal or state statute or law under any jurisdiction outside of the United States where such Person is a defendant in a criminal indictment that provides for the forfeiture of assets to any Governmental Authority as a criminal penalty. There is as of the date hereof (and there will be on the Caribe 3 Amendment Effective Date) no material loss contingency within the meaning of GAAP which has not been reflected in the Financial Statements of Aviation Sales and its Subsidiaries. Neither Aviation Sales nor any Guarantor or any Subsidiary of Aviation Sales is as of the date hereof (or will be on the Caribe Amendment Effective Date) subject to or in default with respect to any final judgment, writ, injunction, restraining order or order of any nature, decree, rule or regulation of any court or Governmental Authority which will, or is reasonably likely to, result in a Material Adverse Effect. This Amendment Agreement shall be deemed to be an Operating Agreement and any violation of a covenant contained herein shall be a violation of an Operative Agreement. 5. Conditions Precedent. The effectiveness of this Amendment Agreement, -------------------- and any amendment, consent or waiver contained herein, shall be subject to fulfillment of the following conditions precedent: (a) The Agent shall have received on the date hereof, in form and substance satisfactory to the Agent, the following: (i) a fully-executed original of this Amendment Agreement; (ii) an executed amendment of the Existing Aviation Sales Credit Agreement, including the consent of Citicorp to this Amendment Agreement in the form of Exhibit A attached hereto; --------- (iii) evidence of the payment of all fees and amounts set forth in Exhibit B attached hereto; --------- (iv) any additional agreements, instruments or documents which it may reasonably request in connection herewith; Nothing contained in this Amendment Agreement shall be deemed to amend, revise or waive any of the conditions to the effectiveness of Amendment No. 9 (as set forth therein), or to imply that any such conditions have been satisfied. (b) The correctness in all material respects of the representations and warranties of the Owner Trustee, Construction Agent and the Lessee contained herein and in each of the Operative Agreements; (c) No material adverse change shall have occurred in the business, assets, management, operations, financial condition or prospects of Aviation Sales or any Guarantor or any Subsidiary of Aviation Sales since December 31, 2000; (d) Since December 31, 2000, no permit, agreement, lease, or license which, in the judgment of the Agent, is material to the business, operations or employee relations of Aviation Sales or any Guarantor or any Subsidiary of Aviation Sales, including without limitation, any agreement relating to the Existing Aviation Sales Credit Agreement or the Senior Subordinated Notes (as defined in the Existing Aviation Sales Credit Agreement), shall have been terminated, modified, revoked, breached, or declared 4 to be in default, or if breached or declared to be in default during such period, such breach or default shall have been cured or waived on terms satisfactory to the Agent and Lenders; (e) Lenders and Holders shall have reviewed all litigation pending or threatened against Aviation Sales or any Guarantor or any Subsidiary of Aviation Sales and determined to their satisfaction that no Material Adverse Effect will, or is reasonably likely to, result from the existence thereof; and (f) None of the members of Aviation Sales' Board of Directors as of December 31, 2000, shall have ceased acting as members of such Board of Directors. 6. Release. ------- (a) Aviation Sales and its Subsidiaries acknowledge that they have no existing defense, counterclaim, offset, cross-complaint, claim or demand of any kind or nature whatsoever that can be asserted to reduce or eliminate all or any part of their or the Owner Trustee's respective liability to pay or perform any obligations pursuant to any of the Operative Agreements or any other documents which evidence or secure any obligations owed under any Operative Agreement. In consideration for the execution of this Amendment Agreement, each of Aviation Sales and each of its Subsidiaries hereby releases and forever discharges, Bank of America, the Agent, the Lenders, the Holders and the Owner Trustee and all of their respective officers, directors, employees, Affiliates and agents (collectively, the "Released Parties") from any and all actions, causes of action, debts, dues, claims, demands, liabilities and obligations of every kind and nature, both in law and in equity, known or unknown, whether heretofore or now existing, liquidated or unliquidated, matured or unmatured, fixed or contingent (collectively, the "Release Claims"), which might be asserted against any of the Released Parties. This Release applies to all matters arising out of or relating to the Operative Agreements, any Property, any obligations due under any of the Operative Agreements and this Amendment Agreement, commitment letters with respect to other loan facilities, and the lending and borrowing relationships, and (to the extent any Release Claims relating to such deposit relationships are now known to Aviation Sales or any of its Subsidiaries) the deposit relationships, between Aviation Sales or its Subsidiaries, and Bank of America, the Agent, the Lenders, the Holders and the Owner Trustee, including the administration, collateralization and funding thereof. Each of Aviation Sales and each of its Subsidiaries further agrees not to bring any action in any judicial, administrative or other proceeding against the Released Parties, or any of them, alleging any such Release Claim or otherwise arising in connection with any such Release Claim. (b) It is the intent of the parties that except as otherwise set forth herein, the foregoing release shall be effective as a full and final accord and satisfaction of all claims hereby released and each of Aviation Sales and each of its Subsidiaries hereby agrees, represents and warrants that the matters released herein are not limited to matters which are known or disclosed. In this connection, each of Aviation Sales and each of its Subsidiaries hereby agrees, represents and warrants that it realizes and acknowledges that factual matters now existing and unknown to it may have given or may hereafter give rise to Release Claims, which are presently unknown, unsuspected, unliquidated, unmatured 5 and/or contingent, and it further agrees, represents and warrants that this release has been negotiated and agreed upon in view of that realization. Nevertheless, Aviation Sales and its Subsidiaries hereby intend to release, discharge and acquit the Released Parties of and from any such unknown, unsuspected, unliquidated, unmatured and/or contingent Release Claims, which are in any way set forth in or related to the matters identified above in this Section 6. Aviation Sales and its Subsidiaries hereby --------- explicitly waive the benefits of any common law or statutory rule with respect to the release of such Release Claims. (c) The acceptance and delivery of this Amendment Agreement by the Agent on behalf of the Released Parties shall not be deemed or construed as an admission of liability with respect to the Release Claims or otherwise by the Released Parties, or any of them, and the Released Parties hereby expressly deny liability of any nature whatsoever arising from or related to the subject of the release contained in this Section 6. --------- (d) Each of Aviation Sales and each of its Subsidiaries hereby agrees, represents and warrants that: (i) such party has not voluntarily, by operation of law or 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 Agreement; and (iii) such party is fully aware of the effect of releases such as that contained in this Section 6. --------- 7. Entire Agreement. This Amendment Agreement sets forth the entire ---------------- understanding and agreement of the parties hereto in relation to the subject matter hereof and supersedes any prior negotiations and agreements among the parties relative to such subject matter. No promise, conditions, representation or warranty, express or implied, not herein set forth shall bind any party hereto, and no one of them has relied on any such promise, condition, representation or warranty. Each of the parties hereto acknowledges that, except as in this Amendment Agreement otherwise expressly stated, no representations, warranties or commitments, express or implied, have been made by any other party to the other. None of the terms or conditions of this Amendment Agreement may be changed, modified, waived or canceled orally or otherwise, except by writing, signed by all the parties hereto, specifying such change, modification, waiver or cancellation of such terms or conditions, or of any proceeding or succeeding breach thereof. 8. Full Force and Effect of Operative Agreements. Except as hereby --------------------------------------------- specifically amended, modified or supplemented, the Participation Agreement, the Lease and all of the other Operative Agreements are hereby confirmed and ratified in all respects and shall remain in full force and effect according to their respective terms. 9. Counterparts. This Amendment Agreement may be executed in one or more ------------ counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument. [Remainder of page intentionally left blank.] 6 IN WITNESS WHEREOF, the parties hereto have caused this Amendment Agreement to be duly executed by their duly authorized officers, all as of the day and year first above written. AVIATION SALES COMPANY, as Construction Agent By: /s/ Michael C. Brant ------------------------------------- Name: Michael C. Brant ----------------------------------- Title: Vice President ---------------------------------- AVIATION SALES COMPANY, as Lessee By: /s/ Michael C. Brant ------------------------------------- Name: Michael C. Brant ----------------------------------- Title: Vice President ---------------------------------- WELLS FARGO BANK NORTHWEST, NATIONAL ASSOCIATION not individually, except as expressly stated under the Operative Agreements, but solely as Owner Trustee under the Aviation Sales Trust 1998-1 By: /s/ Val T. Orton ------------------------------------- Name: Val T. Orton ----------------------------------- Title: Vice President ---------------------------------- BANK OF AMERICA, N.A., as a Holder and as a Lender By: /s/ Kevin Mayer ------------------------------------- Name: Kevin Mayer ----------------------------------- Title: Senior Vice President ---------------------------------- BANK OF AMERICA, N.A., as Administrative Agent By: /s/ Kevin Mayer ------------------------------------- Name: Kevin Mayer ----------------------------------- Title: Senior Vice President ---------------------------------- SIGNATURE PAGE 1 OF 3 JOINDER BY GUARANTORS --------------------- The undersigned Guarantors hereby join in and consent to this Amendment Agreement. AVIATION SALES COMPANY AVS/M-1, INC. (formerly AVIATION SALES MANUFACTURING COMPANY) AVIATION SALES PROPERTY MANAGEMENT CORP. AVIATION SALES FINANCE COMPANY TIMCO ENGINE CENTER, INC. AVS/M-2, INC (formerly AVS/KRATZ-WILDE MACHINE COMPANY AVS/M-3, INC. (formerly APEX MANUFACTURING, INC.) AEROCELL STRUCTURES, INC. AVIATION SALES DISTRIBUTION SERVICES COMPANY AVIATION SALES LEASING COMPANY WHITEHALL CORPORATION TRIAD INTERNATIONAL MAINTENANCE CORPORATION (successor in interest to Aero Corporation and Aero Corp Macon, Inc.) AVIATION SALES MAINTENANCE, REPAIR & OVERHAUL COMPANY CARIBE AVIATION, INC. AIRCRAFT INTERIOR DESIGN, INC. AERO HUSHKIT CORPORATION HYDROSCIENCE, INC. TIMCO ENGINEERED SYSTEMS, INC. By: /s/ Michael C. Brant ------------------------------------- Name: Michael C. Brant ----------------------------------- Title: Vice President of each of the foregoing --------------- Guarantors AVSRE, L.P. By: Aviation Sales Property Management Corp., its general partner By: /s/ Michael C. Brant -------------------------------- Name: Michael C. Brant ------------------------------ Title: Vice President ----------------------------- SIGNATURE PAGE 2 OF 3 AVIATION SALES SPS I, INC. By:/s/ Michael C. Brant -------------------------------------- Name: Michael C. Brant ------------------------------------ Title: Vice President ----------------------------------- SIGNATURE PAGE 3 OF 3
