EXHIBIT 10.2
AMENDED AND RESTATED
TERM LOAN NOTE
$15,500,000 May 31, 2000
FOR VALUE RECEIVED, the undersigned, AVIATION SALES
DISTRIBUTION SERVICES COMPANY, a Delaware corporation, AEROCELL STRUCTURES,
INC., an Arkansas corporation, AVS/KRATZ-WILDE MACHINE COMPANY, a Delaware
corporation, WHITEHALL CORPORATION, a Delaware corporation, TRIAD INTERNATIONAL
MAINTENANCE CORPORATION, a Delaware corporation, APEX MANUFACTURING, INC., an
Arizona corporation, CARIBE AVIATION, INC., a Florida corporation, AIRCRAFT
INTERIOR DESIGN, INC., a Florida corporation, AVIATION SALES LEASING COMPANY, a
Delaware corporation, TIMCO ENGINE CENTER, INC., a Delaware corporation, and
AVIATION SALES BEARINGS COMPANY, a Delaware corporation (the "Borrowers"),
HEREBY JOINTLY AND SEVERALLY PROMISE TO PAY to the order of Citicorp USA, Inc.
(the "Lender"), the principal amount of $15,500,000.00 (Fifteen Million, Five
Hundred Thousand and no/100 Dollars) on the earlier to occur (the "Maturity
Date") of (i) February 17, 2001 and (ii) the date on which the "Obligations" (as
defined in that certain Fourth Amended and Restated Credit Agreement dated as of
May 31, 2000 among the Borrowers, the Lender, the other financial institutions
from time to time a party thereto as Lenders and Issuing Banks, and Citicorp
USA, Inc., a Delaware corporation, as Agent for the Lenders and Issuing Banks
(the "Credit Agreement")) are declared or become payable in full or are repaid
in full.
The Borrowers further, jointly and severally, promise to pay
interest on the unpaid principal amount of the indebtedness evidenced hereby
from the date advanced until such principal amount is paid in full, at the per
annum rate of twelve percent (12.0%). Accrued interest shall be payable, in
arrears, on the first day of each calendar month (for the immediately preceding
calendar month) commencing on the first such day following the date hereof and,
if not theretofore paid in full, on the Maturity Date. Notwithstanding the
foregoing, effective immediately upon the occurrence of an Event of Default, and
for as long thereafter as such Event of Default shall be continuing unwaived,
the principal balance outstanding hereunder, shall bear interest at the per
annum rate of fourteen percent (14.0%).
The Borrowers further represent and warrant that the proceeds
of the loan advanced under this Amended and Restated Term Loan Note were used
solely to repay Revolving Loans outstanding on February 18, 2000 under the Third
Amended and Restated Credit Agreement dated as of October 17, 1997, as amended,
and jointly and severally, agree and covenant, that immediately upon the receipt
by the Borrowers or any "Guarantor" (as defined in the Credit Agreement) of any
"Net Cash Proceeds of Sale" (as defined in the Credit Agreement) with respect to
the assets and property identified on Exhibit A attached hereto and made a part
hereof, to make or cause to be made a mandatory prepayment of the principal
indebtedness evidenced by this Amended and Restated Term Loan Note in an amount
equal to fifty percent (50%) of the balance of such Net Cash Proceeds of Sale
remaining after application of such Net Cash Proceeds of Sale to the "Loans" (as
defined in the Credit Agreement) as required by Section 4.01(b)(vi)(C)(1), (2)
and (3); PROVIDED, HOWEVER, that in no event shall the aforesaid mandatory
prepayment be required to be made if and to the extent that the "Revolving
Credit Availability" (as defined in the Credit Agreement) shall be less than the
greater of (a) $10,000,000 or (b) five percent (5.0%) of the Revolving Credit
Commitments as then in effect, in each instance, on a pro forma basis after
giving effect to such mandatory prepayment.
All payments of principal and interest in respect of this
Amended and Restated Term Loan Note shall be made to the Lender in lawful money
of the United States of America in same day funds on the date due at New York,
New York to such account of the Lender at Citibank, N.A. as the Lender may
designate. Funds received by the Lender as aforesaid no later than 1:00 p.m.
(New York time) on any given Business Day shall be credited against payment to
be made that day and funds received by the Lender after that time shall be
deemed to have been paid on the next succeeding Business Day. Business Day shall
mean a day in the applicable local time which is not a Saturday or Sunday or a
legal holiday and on which banks are not required or permitted by law or other
governmental action to close in New York, New York. All payments made on account
of principal hereof and interest thereon shall be recorded by the Lender on its
books and records.
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Each of the Borrowers hereby represents and warrants to the
Lender that the execution, delivery and performance of this Amended and Restated
Term Loan Note by the Borrowers and the other agreements and documents executed
and delivered in connection herewith by the Borrowers and certain affiliates of
the Borrowers (collectively, the "Guaranty and Collateral Documents") do not and
will not (i) conflict with the "Organizational Documents" (as defined in the
Credit Agreement) or by-laws of any Borrower or affiliate a party to any of the
Guaranty and Collateral Documents, (ii) constitute a tortious interference with
any "Contractual Obligation" (as defined in the Credit Agreement) of any
Borrower or affiliate a party to such Guaranty and Collateral Documents, or
conflict with, result in a breach of or constitute (with or without notice or
lapse of time or both) a default under any "Requirement of Law" (as defined in
the Credit Agreement) or Contractual Obligation of any Borrower or affiliate a
party to such Guaranty and Collateral Documents, or require termination of any
such Contractual Obligation, (iii) result in or require the creation or
imposition of any lien whatsoever upon any property or assets of any Borrower or
affiliate a party to such Guaranty and Collateral Documents, other than the
liens contemplated by the Credit Agreement and "Loan Documents" (as defined in
the Credit Agreement), or require any approval of the shareholders of any
Borrower or affiliate a party to such Guaranty and Collateral Documents.
Each Borrower has the requisite power and authority to
execute, deliver and perform this Amended and Restated Term Loan Note and the
other agreements and documents executed and delivered by it in connection
herewith and each of the affiliates of the Borrowers a party to the Guaranty and
Collateral Documents has the requisite power and authority to execute, deliver
and perform such Guaranty and Collateral Documents. The execution, delivery and
performance of this Amended and Restated Term Loan Note and the Guaranty and
Collateral Documents have been duly authorized by all necessary corporate action
and such authorization has not been rescinded. No other corporate action or
proceedings on the part of any Borrower or affiliate thereof a party to the
Guaranty and Collateral Documents are necessary to consumamte such transactions.
This Amended and Restated Term Loan Note and each of the Guaranty and Collateral
Documents have been duly executed and delivered on behalf of the Borrowers and
their affiliates a party thereto and constitute such person's legal, valid and
binding obligation, enforceable against such person in accordance with its
terms..
Each of the following occurrences shall constitute an Event of
Default under this Amended and Restated Term Loan Note: (i) the Borrowers shall
fail to pay when due any principal of or interest on the indebtedness evidenced
by this Amended and Restated Term Loan Note in accordance with the terms hereof,
and (ii) there shall occur any "Event of Default" (as defined in, and set forth
pursuant to Section 12.01 of, the Credit Agreement).
Upon the occurrence of an Event of Default described in
Section 12.01(f), 12.10(g) or 12.01(h) of the Credit Agreement, the unpaid
principal amount evidenced by this Amended and Restated Term Loan Note shall
become, and upon the occurrence and during the continuance of all other Events
of Default, such unpaid principal amount may be declared by the Lender to be,
due and payable.
The indebtedness evidenced by this Amended and Restated Term
Loan Note is secured pursuant to the terms of that certain Collateral Document
Amendment dated as of February 18, 2000 among the Borrowers and certain
affiliates of the Borrowers, as grantors, Citicorp USA, Inc., a Delaware
corporation, in its capacity as agent, as grantee, and the Lender, which
Collateral Document Amendment has been reaffirmed pursuant to that certain
Reaffirmation Agreement of even date herewith among the parties to the
Collateral Document Amendment.
The Borrowers, jointly and severally, agree upon demand to
pay, or reimburse the Lender for, all of the Lender's reasonable internal and
external audit, legal, appraisal, valuation, filing, document duplication and
reproduction and investigation expenses and for all other out-of-pocket costs
and expenses of every type and nature (including, without limitation, the
reasonable fees, expenses and disbursements of Sidley & Austin, local legal
counsel, auditors, accountants, appraisers, printers, insurance and
environmental advisers, and other consultants and agents) incurred by the Lender
in connection with (i) the preparation, negotiation, and execution of this
Amended and Restated Term Loan Note and the agreements and documents executed
and delivered in connection therewith and the Lender's periodic reviews and
audits of the Borrowers and guarantors of the indebtedness evidenced hereby;
(ii) the preparation, negotiation, execution and interpretation of this Amended
and Restated Term Loan Note and the agreements and documents executed and
delivered in connection therewith; (iii) the creation, perfection or protection
of the liens securing this Amended and Restated Term Loan Note (including,
without limitation, any reasonable fees and expenses for local counsel in
various jurisdictions); (iv) consultation with attorneys in
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connection therewith and with respect to the Lender's rights and
responsibilities under this Amended and Restated Term Loan Note and the
agreements and documents executed and delivered in connection therewith; (v) the
protection, collection or enforcement of any of the obligations evidenced hereby
or by such other agreements and documents; (vi) the commencement, defense or
intervention in any court proceeding relating in any way to such obligations,
any security therefor, any Borrower, any guarantor thereof, this Amended and
Restated Term Loan Note or any of such other agreements and documents; (vii) the
response to, and preparation for, any subpoena or request for document
production with which the Lender is served or deposition or other proceeding in
which the Lender is called to testify, in each case, relating in any way to such
obligations, any security therefor, any Borrower, any guarantor thereof, this
Amended and Restated Term Loan Note or any of such other agreements and
documents; and (viii) any amendments, consents, waivers, assignments,
restatements, or supplements to this Term Loan Agreement or any of such
agreements and documents and the preparation, negotiation, and execution of the
same.
The Borrowers, jointly and severally, further agree to pay or
reimburse the Lender, upon demand, for all out-of-pocket costs and expenses,
including, without limitation, reasonable attorneys' fees (including allocated
costs of internal counsel and costs of settlement) incurred by the Lender after
the occurrence of an Event of Default (i) in enforcing this Amended and Restated
Term Loan Note and the agreements and documents executed and delivered in
connection therewith and the security therefor or exercising or enforcing any
other right or remedy available by reason of such Event of Default; (ii) in
connection with any refinancing or restructuring of the credit arrangements
provided under this Amended and Restated Term Loan Note in the nature of a
"work-out" or in any insolvency or bankruptcy proceeding; (iii) in commencing,
defending or intervening in any litigation or in filing a petition, complaint,
answer, motion or other pleadings in any legal proceeding relating to the
obligations evidenced hereby, any Borrower, any guarantor thereof, or security
therefor and related to or arising out of the transactions contemplated hereby
or by any of the agreements and documents executed in connection herewith; and
(iv) in taking any other action in or with respect to any suit or proceeding
(bankruptcy or otherwise) described in CLAUSES (I) through (III) above.
The Borrowers, jointly and severally, further agree (a) to
indemnify and hold harmless the Lender and each of its officers, directors,
employees, attorneys and agents (collectively, the "Indemnitees") from and
against any and all liabilities, obligations, losses (other than loss of
profits), damages, penalties, actions, judgments, suits, claims, costs, expenses
and disbursements of any kind or nature whatsoever and including, without
limitation, the fees and disbursements of counsel for such Indemnitees in
connection with any investigative, administrative or judicial proceeding,
whether or not such Indemnitees shall be designated a party thereto), imposed
on, incurred by, or asserted against such Indemnitees in any manner relating to
or arising out of (i) this Amended and Restated Term Loan Note or the agreements
and documents executed and delivered in connection therewith, the making of the
loan evidenced hereby, the management of such loan, the use or intended use of
the proceeds of such loan, or any of the other transactions contemplated by any
of the agreements and documents executed and delivered in connection herewith,
or (ii) any liabilities and costs relating to any violation by any Borrower or
guarantor, or their respective predecessors-in-interest, of any environmental,
health or safety requirements of law, the past, present or future operations of
any Borrower or guarantor, or any of their respective predecessors-in-interest,
or, the past, present or future environmental, health or safety condition of any
respective past, present or future property of such persons, the presence of
asbestos-containing materials at any respective past, present or future property
of such persons, or the release or threatened release of any contaminant into
the environment by any Borrower or guarantor, or their respective
predecessors-in-interest, or the release or threatened release of any
contaminant into the environment from or at any facility to which any Borrower
or guarantor, or their respective predecessors-in-interest, sent or directly
arranged the transport of any contaminant (collectively, the "Indemnified
Matters"); PROVIDED, HOWEVER, the Borrowers shall have no obligation to an
Indemnitee hereunder with respect to Indemnified Matters caused by or resulting
from the willful misconduct or gross negligence of such Indemnitee, as
determined by a final, non-appealable order of a court of competent jurisdiction
and (b) not to assert any claim against any of the Indemnified Parties on any
theory of liability for special, indirect, consequential or punitive damages
arising out of, or in any way in connection with, the loans made hereunder or
the transactions evidenced by the agreements and documents executed and
delivered in connection herewith, and/or any other matters governed by this
Amended and Restated Term Loan Note and such other agreements and documents. To
the extent that the undertaking to indemnify, pay and hold harmless set forth in
the preceding sentence may be unenforceable because it is violative of any law
or public policy, each Borrower shall contribute the maximum portion which it is
permitted to pay and satisfy under applicable law, to the payment and
satisfaction of all Indemnified Matters incurred by the Indemnitees. The Lender
agrees to notify the Borrowers of the institution or assertion of any
Indemnified Matter, but the parties hereto hereby
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agree that the failure to so notify the Borrowers shall not release any Borrower
from its obligations hereunder, except to the extent of any material increase in
the liabilities of such Borrower hereunder directly resulting from such failure
to receive notice from such Indemnitees.
Any notice or other communication herein required or permitted
to be given shall be in writing and may be personally served, sent by facsimile
transmission or courier service or United States certified mail and shall be
deemed to have been given when delivered in person or by courier service, upon
receipt of a facsimile transmission, or four (4) Business Days after deposit in
the United States mail with postage prepaid and properly addressed. For the
purposes hereof, the addresses of the parties hereto (until notice of a change
thereof is delivered as provided herein) shall be as set forth below:
If to the Borrowers:
c/o Aviation Sales Company
3701 Flamingo Road
Miramar, Florida 33027
Attn: Dale S. Baker
Telecopy: 954-538-6610
with a copy to:
Akerman Senterfitt & Eidson, P.A.
SunTrust International Center
28th Floor
One S.E. 3rd Avenue
Miami, Florida 33131-1704
Attn: William C. Arnhols
Telecopy: 305-374-5095
If to the Lender:
Citicorp USA, Inc.
399 Park Avenue
6th Floor, Zone 4
New York, New York 10043
Attn: Shapeligh B. Smith
Telecopy: 212-793-1290
with a copy to:
Sidley & Austin
Bank One Plaza
10 South Dearborn Street
Chicago, Illinois 60603
Attn: DeVerille A. Huston
Telecopy: 312-853-7036
or, as to each party, at such other address as may be designated by such party
in a written notice to all of the other parties to this Agreement.
Demand, presentment, diligence, protest and notice of
nonpayment are hereby waived by the Borrowers.
This Amended and Restated Term Loan Note shall be binding upon
the parties hereto and their respective successors and assigns and shall inure
to the benefit of the parties hereto and the successors and assigns of
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the Lender. The rights hereunder of the Borrowers, or any interest therein, may
not be assigned without the written consent of the Lender.
No failure or delay on the part of the Lender in the exercise
of any power, right or privilege under this Amended and Restated Term Loan Note
shall impair such power, right or privilege or be construed to be a waiver of
any default or acquiescence therein, nor shall any single or partial exercise of
any such power, right or privilege preclude other or further exercise thereof or
of any other right, power or privilege. All rights and remedies existing under
this Amended and Restated Term Loan Note are cumulative with and not exclusive
of any rights or remedies otherwise available.
THE LENDER AND EACH OF THE BORROWERS IRREVOCABLY AND
UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE
JURISDICTION OF ANY NEW YORK STATE COURT OR FEDERAL COURT SITTING IN NEW YORK,
NEW YORK, AND ANY COURT HAVING JURISDICTION OVER APPEALS OF MATTERS HEARD IN
SUCH COURTS, IN ANY ACTION OR PROCEEDING ARISING OUT OF, CONNECTED WITH, RELATED
TO OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH
THIS AMENDED AND RESTATED TERM LOAN NOTE OR ANY OTHER LOAN DOCUMENT, WHETHER
ARISING IN CONTRACT, TORT, EQUITY OR OTHERWISE, OR FOR RECOGNITION OR
ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND
UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR
PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH STATE COURT OR, TO THE EXTENT
PERMITTED BY LAW, IN SUCH FEDERAL COURT. EACH BORROWER IRREVOCABLY DESIGNATES
AND APPOINTS CT CORPORATION SYSTEM, INC., 1633 BROADWAY, NEW YORK, NEW YORK
10019 AS ITS AGENT (THE "PROCESS AGENT") FOR SERVICE OF ALL PROCESS IN ANY SUCH
PROCEEDING IN ANY SUCH COURT, SUCH SERVICE BEING HEREBY ACKNOWLEDGED TO BE
EFFECTIVE AND BINDING SERVICE IN EVERY RESPECT. EACH OF THE LENDER AND THE
BORROWERS AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE
CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR
IN ANY OTHER MANNER PROVIDED BY LAW. EACH BORROWER WAIVES IN ALL DISPUTES ANY
OBJECTION THAT IT MAY HAVE TO THE LOCATION OF THE COURT CONSIDERING THE DISPUTE.
EACH BORROWER AGREES THAT THE LENDER SHALL HAVE THE RIGHT TO
PROCEED AGAINST SUCH BORROWER OR ITS PROPERTY IN A COURT IN ANY LOCATION TO
ENABLE THE LENDER TO REALIZE ON THE COLLATERAL OR ANY OTHER SECURITY FOR THE
OBLIGATIONS, OR TO ENFORCE A JUDGMENT OR OTHER COURT ORDER ENTERED IN FAVOR OF
THE LENDER. EACH BORROWER AGREES THAT IT WILL NOT ASSERT ANY PERMISSIVE
COUNTERCLAIMS IN ANY PROCEEDING BROUGHT BY THE LENDER TO REALIZE ON THE
COLLATERAL OR ANY OTHER SECURITY FOR THE OBLIGATIONS, OR TO ENFORCE A JUDGMENT
OR OTHER COURT ORDER IN FAVOR OF THE LENDER. EACH BORROWER WAIVES ANY OBJECTION
THAT IT MAY HAVE TO THE LOCATION OF THE COURT IN WHICH THE LENDER MAY COMMENCE A
PROCEEDING DESCRIBED IN THIS SECTION.
EACH BORROWER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS
OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE
MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO
THE PROCESS AGENT OR SUCH BORROWER'S NOTICE ADDRESS SPECIFIED BELOW, SUCH
SERVICE TO BECOME EFFECTIVE FIVE (5) DAYS AFTER SUCH MAILING. EACH BORROWER
IRREVOCABLY WAIVES ANY OBJECTION (INCLUDING, WITHOUT LIMITATION, ANY OBJECTION
OF THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS) WHICH IT
MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY SUCH ACTION OR PROCEEDING WITH
RESPECT TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT IN ANY JURISDICTION SET
FORTH ABOVE. NOTHING HEREIN SHALL AFFECT THE RIGHT TO SERVE PROCESS IN ANY OTHER
MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT OF THE AGENT TO BRING
PROCEEDINGS AGAINST ANY BORROWER IN THE COURTS OF ANY OTHER JURISDICTION.
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EACH OF THE LENDER AND BORROWERS IRREVOCABLY WAIVES TRIAL BY
JURY IN ANY ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER
LOAN DOCUMENT. ANY OF THE BORROWERS OR LENDER MAY FILE AN ORIGINAL OR A COPY OF
THIS AMENDED AND RESTATED TERM LOAN NOTE WITH ANY COURT AS WRITTEN EVIDENCE OF
THE CONSENT OF THE PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
THIS AMENDED AND RESTATED TERM LOAN NOTE SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
Each Borrower represents and warrants to the Lender that it
has discussed this Amended and Restated Term Loan Note with its counsel. It is
expressly understood and agreed by the Borrowers that this Amended and Restated
Term Loan Note is executed and delivered in substitution for that certain Tern
Loan Note dated February 18, 2000 (the "Original Term Loan Note") and merely
modifies such Original Term Loan Note, is not payment for such Original Term
Loan Note, and is in no way to constitute a novation of the Original Term Loan
Note.
Each of the Borrowers agrees that it shall be jointly and
severally liable for all of the indebtedness evidenced by this Amended and
Restated Term Loan Note. Each of the Borrowers is accepting joint and several
liability hereunder in consideration of the financial accommodations to be
provided by the Lender hereunder, for the mutual benefit, directly and
indirectly, of each of the Borrowers and in consideration of the undertakings of
each of the Borrowers to accept joint and several liability for the obligations
of each of them. Each of the Borrowers jointly and severally hereby irrevocably
and unconditionally accepts, not merely as a surety but also as a co-debtor,
joint and several liability with the other Borrowers with respect to the payment
and performance of all of the indebtedness evidenced hereby, it being the
intention of the parties hereto that all of such indebtedness shall be the joint
and several obligations of each of the Borrowers without preferences or
distinction among them. If and to the extent that any of the Borrowers shall
fail to make any payment with respect to any of such indebtedness as and when
due or to perform any of the agreements contained herein in accordance with the
terms thereof, then in each such event, the other Borrowers will make such
payment with respect to, or perform, such agreement. The obligations of each
Borrower under the provisions hereof constitute full recourse obligations of
such Borrower, enforceable against it to the full extent of its properties and
assets, irrespective of the validity, regularity or enforceability of this
Amended and Restated Term Loan Note or any other circumstances whatsoever.
Except as otherwise expressly provided herein, each Borrower hereby waives
notice of acceptance of its joint and several liability, notice of the advance
of the principal amount of the loan made hereunder, notice of occurrence of any
Event of Default, or of any demand for any payment under this Amended and
Restated Term Loan Note, notice of any action at any time taken or omitted by
the Lender under or in respect of any of the obligations hereunder, any
requirement of diligence and, generally, all demands, notices and other
formalities of every kind in connection with this Amended and Restated Term Loan
Note. Each Borrower hereby assents to, and waives notice of, any extension or
postponement of the time for the payment of any of such obligations, the
acceptance of any partial payment thereon, any waiver, consent or other action
or acquiescence by the Lender at any time or times in respect of any default by
any Borrower in the performance or satisfaction of any term, covenant, condition
or provision of this Amended and Restated Term Loan Note, any and all other
indulgences whatsoever by the Lender in respect of any of such obligations, and
the taking, addition, substitution or release, in whole or in part, at any time
or times, of any security for any of such obligations or the addition,
substitution or release, in whole or in part, of any Borrower. Without limiting
the generality of the foregoing, each Borrower assents to any other action or
delay in acting or failure to act on the part of the Lender, including, without
limitation, any failure strictly or diligently to assert any right or to pursue
any remedy or to comply fully with the applicable laws or regulations thereunder
which might, but for the provisions of this paragraph, afford grounds for
terminating, discharging or relieving such Borrower, in whole or in part, from
any of its obligations hereunder, it being the intention of each Borrower that,
so long as any of the obligations evidenced by this Amended and Restated Term
Loan Note remain unsatisfied, the obligations of such Borrower under this
paragraph shall not be discharged except by performance and then only to the
extent of such performance. The obligations of each Borrower under this
paragraph shall not be diminished or rendered unenforceable by any winding up,
reorganization, arrangement, liquidation, reconstruction or similar proceeding
with respect to any Borrower or the Lender. The joint and several liability of
the Borrowers hereunder shall continue in full force and effect notwithstanding
any absorption, merger, amalgamation or any other change whatsoever in the name,
membership, constitution or place of formation of any Borrower or the Lender.
The provisions of this paragraph are
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made for the benefit of the Lender and its successors and assigns, and may be
enforced by any such person from time to time against any of the Borrowers as
often as occasion therefor may arise and without requirement on the part of any
such person first to marshal any of its claims or to exercise any of its rights
against any of the other Borrowers or to exhaust any remedies available to it
against any of the other Borrowers or to resort to any other source or means of
obtaining payment of any of the indebtedness evidenced hereto or to elect any
other remedy. The provisions of this paragraph shall remain in effect until all
the indebtedness evidenced hereby shall have been paid in full or otherwise
fully satisfied. If at any time, any payment, or any part thereof, made in
respect of any of such indebtedness, is rescinded or must otherwise be restored
or returned by the Lender upon the insolvency, bankruptcy or reorganization of
any of the Borrowers, or otherwise, the provisions of this paragraph will
forthwith be reinstated in effect, as though such payment had not been made.
Notwithstanding any provision to the contrary contained herein, to the extent
the joint obligations of a Borrower shall be adjudicated to be invalid or
unenforceable for any reason (including, without limitation, because of any
applicable state or federal law relating to fraudulent conveyances or transfers)
then the obligations of each Borrower hereunder shall be limited to the maximum
amount that is permissible under applicable law (whether federal or state and
including, without limitation, the federal Bankruptcy Code). The Borrowers
hereby agree, as among themselves, that if any Borrower shall become an Excess
Funding Borrower (as defined below), each other Borrower shall, on demand of
such Excess Funding Borrower (but subject to the next sentence hereof and to
subsection (B) below), pay to such Excess Funding Borrower an amount equal to
such Borrower's Pro Rata Share (as defined below and determined, for this
purpose, without reference to the properties, assets, liabilities and debts of
such Excess Funding Borrower) of such Excess Payment (as defined below). The
payment obligation of any Borrower to any Excess Funding Borrower under this
paragraph shall be subordinate and subject in right of payment to the prior
payment in full of the indebtedness of such Borrower under the other provisions
of this Amended and Restated Term Loan Note, and such Excess Funding Borrower
shall not exercise any right or remedy with respect to such excess until payment
and satisfaction in full of all of such obligations. For purposes hereof, (i)
"Excess Funding Borrower" shall mean, in respect of any obligations arising
under the other provisions of this Amended and Restated Term Loan Note
(hereafter, the "Joint Obligations"), a Borrower that has paid an amount in
excess of its Pro Rata Share of the Joint Obligations; (ii) "Excess Payment"
shall mean, in respect of any Joint Obligations, the amount paid by an Excess
Funding Borrower in excess of its Pro Rata Share of such Joint Obligations; and
(iii) "Pro Rata Share", for the purposes of this paragraph, shall mean, for any
Borrower, the ratio (expressed as a percentage) of (A) the amount by which the
aggregate present fair saleable value of all of its assets and properties
exceeds the amount of all debts and liabilities of such Borrower (including
contingent, subordinated, unmatured, and unliquidated liabilities, but excluding
the obligations of such Borrower hereunder) to (B) the amount by which the
aggregate present fair saleable value of all assets and other properties of such
Borrower and all of the other Borrowers exceeds the amount of all of the debts
and liabilities (including contingent, subordinated, unmatured, and unliquidated
liabilities, but excluding the obligations of such Borrower and the other
Borrowers hereunder) of such Borrower and all of the other Borrowers, all as of
the date hereof.
IN WITNESS WHEREOF, each of the Borrowers has caused this
Amended and Restated Term Loan Note to be executed and delivered by its duly
authorized officer as of the day and year first above written.
AVIATION SALES DISTRIBUTION AEROCELL STRUCTURES, INC.
SERVICES COMPANY
By___________________________ By________________________
Michael C. Brant Michael C. Brant
Vice President and Treasurer Vice President and Treasurer
7
<PAGE>
AVS/KRATZ-WILDE MACHINE COMPANY WHITEHALL CORPORATION
By___________________________ By________________________
Michael C. Brant Michael C. Brant
Vice President and Treasurer Vice President and Treasurer
TRIAD INTERNATIONAL MAINTENANCE APEX MANUFACTURING, INC.
CORPORATION
By___________________________ By________________________
Michael C. Brant Michael C. Brant
Vice President and Treasurer Vice President and Treasurer
AIRCRAFT INTERIOR DESIGN, INC. CARIBE AVIATION, INC.
By___________________________ By________________________
Michael C. Brant Michael C. Brant
Vice President and Treasurer Vice President and Treasurer
AVIATION SALES LEASING COMPANY TIMCO ENGINE CENTER, INC.
By__________________________ By________________________
Michael C. Brant Michael C. Brant
Vice President and Treasurer Vice President and Treasurer
AVIATION SALES BEARINGS COMPANY
By_________________________
Michael C. Brant
Vice President and Treasurer
8
