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EXHIBIT 2.14
TENTH AMENDMENT AND AGREEMENT
TENTH AMENDMENT AND AGREEMENT, dated as of November 17, 1999 (this
"Tenth Amendment"), to the Existing Credit Agreement (as hereinafter defined),
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by and between INTERNATIONAL AIRLINE SUPPORT GROUP, INC., a Delaware corporation
(the "Borrower"), and GMAC COMMERCIAL CREDIT LLC, a New York limited liability
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company (the "Lender"), as successor in interest by merger to BNY FINANCIAL
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CORPORATION ("BNYFC").
RECITALS
The Borrower and BNYFC have entered into the Existing Credit
Agreement, pursuant to which the Lender is providing to the Borrower (i) a
$13,000,000.00 revolving credit facility, (ii) a $3,000,000.00 term loan
facility, (iii) a $3,750,000.00 term loan facility, (iv) a $1,500,000.00 term
loan facility, (v) a $1,600,000.00 term loan facility, (vi) a $1,000,000.00
revolving credit facility, (vii) a $2,000,000 letter of credit facility and
(viii) a $5,500,000.00 term loan facility, all of which are secured by accounts
receivable, inventory and other collateral of the Borrower. The Borrower has
requested that the Lender provide an additional $2,100,000.00 term loan facility
(as more specifically defined below, the "Term Loan F Facility") for the
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acquisition of one Embraer EMB-120RT Brasilia aircraft (bearing manufacturer's
serial number 120.242) (the "Aircraft Acquisition"). Subject to the terms and
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conditions hereof, the Lender is willing to provide the Term Loan F Facility to
the Borrower and to amend certain provisions of the Existing Credit Agreement in
order to effectuate the foregoing.
In consideration of the foregoing and of the mutual covenants and
undertakings herein contained, the parties hereto hereby agree that the Existing
Credit Agreement is amended as hereinafter provided.
ARTICLE I
Definitions
1. Definitions. (a) In addition to the definitions set forth in the
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heading and the recitals to this Tenth Amendment, the following definitions
shall apply to this Tenth Amendment:
"Agreement": means the Existing Credit Agreement as amended by this Tenth
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Amendment.
"Aircraft Acquisition Documents": the collective reference to (i) the
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Purchase and Sale Agreement made and entered into as of November 9, 1999 between
Newcourt Credit Group Inc("Newcourt") and Borrower and (ii) the Warranty Bill
of Sale given by Newcourt to the Borrower in respect of the Term Loan F Aircraft
(as defined in Article III, Section 1 hereof).
"Existing Credit Agreement": means the Credit Agreement, dated as of September
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30, 1996, between the Borrower and BNYFC, as amended by the First Amendment,
Waiver and Agreement, dated as of March 24, 1997, between the Borrower and
BNYFC, the Second Amendment and Agreement, dated as of September 9, 1997,
between the Borrower and BNYFC, the Third Amendment and Agreement, dated as of
October 15, 1997, between the Borrower and BNYFC, the Fourth Amendment and
Agreement, dated as of February 2, 1998, between the Borrower and BNYFC, the
Fifth Amendment and Agreement, dated as of July 16, 1998, between the Borrower
and BNYFC, the Sixth Amendment and Agreement, dated as of May 30, 1998, between
the Borrower and BNYFC, the Seventh Amendment and Agreement, dated as of October
28, 1998, between the Borrower and BNYFC the Eighth Amendment and Agreement,
dated as of December 8, 1998, between the Borrower and BNYFC and the Ninth
Amendment and Agreement, dated as of July 1, 1999, between the Borrower and BNY
Factoring LLC (now known as GMAC Commercial Credit Corporation), as successor in
interest to BNYFC, as the same may have been further amended, supplemented or
modified from time to time up to but not including the effectiveness of this
Tenth Amendment.
"Tenth Amendment Documents": this Tenth Amendment, the Term Loan F Aircraft
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Chattel Mortgage (as defined in Article III, Section 1 hereof), the Term Note F
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(as defined in Article III, Section 1 hereof) and any other agreements,
instruments and documents executed or delivered pursuant to or in connection
with this Tenth Amendment and the transactions Contemplated thereby.
(b) Unless otherwise indicated, capitalized terms that are used but not
defined herein shall have the meanings ascribed to them in the Existing Credit
Agreement.
ARTICLE II
Representations
1. Representations. (a) The Borrower hereby represents and warrants as
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follows:
(i) It (A) is duly organized, validly existing and in good standing under
the laws of the jurisdiction of its organization, (B) has the power and
authority, and the legal right, to own and operate its property, to lease the
property it operates as lessee and to conduct the business in which it is
currently engaged, (C) is duly qualified and in good standing under the laws of
each jurisdiction where its ownership, lease or operation of property or the
conduct of its business requires such qualification and (D) is in compliance
with ,all Requirements of Law except to the extent that the failure to comply
therewith reasonably could not, in the aggregate, be expected to have a Material
Adverse Effect.
(ii) It has the power and authority, and the legal right, to make, deliver
and perform this Tenth Amendment and the other Tenth Amendment Documents to
which it is a party and to borrow under the Agreement and has taken all
necessary action to authorize the borrowings on the terms and conditions of the
Agreement and this Tenth Amendment and to authorize the execution, delivery and
performance of the Tenth Amendment Documents to which it is a party. No consent
or authorization of, filing with, notice to or other act by or in respect of,
any Governmental Authority or any other Person is required in connection with
the borrowings under the Agreement or with the execution, delivery, performance,
validity or enforceability of the Tenth Amendment Documents to which it is a
party. Each Tenth Amendment Document to which the Borrower is a party has been
or will be duly executed and delivered on behalf of the Borrower. Each Tenth
Amendment Document to which the Borrower is a party when executed and delivered
will constitute a legal, valid and binding obligation of the Borrower,
enforceable against it in accordance with its terms, subject to the effects of
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and
other similar laws relating to or affecting creditors' rights generally, general
equitable principles (whether considered in a proceeding in equity or at law)
and an implied covenant of good faith and fair dealing.
(iii) The conditions contained in Article IV hereof have been satisfied.
(b) The Borrower represents that each of the Credit Documents is on the date
hereof in full force and effect.
ARTICLE III
Amendments to Existing Credit Agreement
1. Amendments to Section 1. (a) Section 1.1 of the Existing Credit
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Agreement is hereby amended by inserting the following new definitions therein
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in alphabetical order:
"Tenth Amendment": that certain Tenth Amendment and Agreement, dated as of
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November 17, 1999, between the Borrower and the Lender.
"Tenth Amendment Documents": the Tenth Amendment, the Term Loan F Aircraft
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Chattel Mortgage, Term Note F and any other agreements, instruments and
documents executed or delivered pursuant to or in connection with the Tenth
Amendment and the transactions contemplated thereby.
"Tenth Amendment Effective Date": the date on which all of the conditions
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precedent to the effectiveness of the Tenth Amendment set forth in Article IV of
the Tenth Amendment are first satisfied or waived.
"Term Loan F": as defined in Section 2.3(g) (together with any advance made
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in connection with the substitution of a Term Loan F Aircraft, Term Loan F
Aircraft Engine or Term Loan F Aircraft Propeller pursuant to Section 2.5(f)).
"Term Loan F Aircraft": each Aircraft owned from time to time by the
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Borrower and listed as a Term Loan F Aircraft and described on Schedule I
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hereto, as the same may be amended or modified from time to time in accordance
with this Agreement.
"Term Loan F Aircraft Chattel Mortgage": that certain Aircraft Chattel
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Mortgage, dated as of November *[], 1999, from the Borrower to the Lender with
respect to Term Loan F Aircraft.
"Term Loan F Aircraft Engine": each Aircraft Engine owned from time to time
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by the Borrower and listed as a Term Loan F Aircraft Engine and described on
Schedule Ihereto, as the same may be amended or modified from time to time in
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accordance with this Agreement.
"Term Loan F Aircraft Propeller": each Aircraft Propeller owned from time to
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time by the Borrower and listed as a Term Loan F Aircraft propeller and
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described on Schedule I hereto, as the same may be amended or modified from time
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to time in accordance with this Agreement.
"Term Loan F Borrowing Base": at any time, an amount equal to the lesser of
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(i) 80% (or such other percentage as the Lender shall determine in its sole
discretion) of the Forced Liquidation Value, after deduction of any applicable
Collateral Reserves, at such time, of all Term Loan F Aircraft and (ii) the
purchase therefor price paid by the Borrower to Newcourt Credit Group Inc.
"Term Loan F Facility": at any time, the obligation of the Lender to make Term
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Loan F in accordance with the provisions of this Agreement, which shall not
exceed an amount equal to $2,100,000.00 minus the aggregate amount of repayments
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of principal then required to have been made in accordance with Schedule 2.3F.
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"Term Note F": a promissory note of the Borrower evidencing Term Loan F, in form
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and substance acceptable to the Lender.
(b) The definition of the term "Approved Aircraft" in Section 1.1 of the
Existing Credit Agreement is hereby deleted in its entirety and replaced by the
following:
" "Approved Aircraft": means the collective reference to the Term Loan A
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Aircraft, the Term Loan A Aircraft Engines, the Term Loan B Aircraft, the Term
Loan B Aircraft Engines, the Term Loan C Aircraft, the Term Loan C Aircraft
Engines, the Term Loan D Aircraft, the Term Loan D Aircraft Engines, the Term
Loan E Aircraft, the Term Loan E Aircraft Engines, the Term Loan E Aircraft
Propellers, the Term Loan F Aircraft, the Term Loan F Aircraft Engines, and the
Term Loan F Aircraft Propellers."
(c) The definition of the term "Credit Documents" in Section 1.1 of the
Existing Credit Agreement is hereby deleted in its entirety and replaced by the
following:
""Credit Documents": this Agreement, the First Amendment, the Second
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Amendment, the Third Amendment, the Fourth Amendment, the Fifth Amendment, the
Sixth Amendment, the Seventh Amendment, the Eighth Amendment, the Ninth
Amendment, the Tenth Amendment, the Letter of Credit Documents, the Security
Documents, each Consent and Agreement, Term Note A, Term Note B, Term Note C,
Term Note D, Term E Note, Term F Note, any Revolver Note and any other
documents, agreements or instruments executed and delivered to the Lender
pursuant to Section 6.11."
(d) The definition of "Revolver Reserve" in Section 1.1 of the Existing
Credit Agreement is hereby deleted in its entirety and replaced by the
following:
" "Revolver Reserve": as of any date, an amount equal to the lesser of (i)
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the amount, if any, by which the sum determined in accordance with clause I of
the definition of Revolver Borrowing Base on such date exceeds the aggregate
outstanding Revolver Advances on such date and (ii) the amount, if any, by which
the sum of the Term Loan A Facility (without regard to any Term Loan A
borrowings made prior to or on such date) on such date, the Term Loan B Facility
(without regard to any Term Loan B borrowings made prior to or on such date) on
such date, the Term Loan C Facility (without regard to any Term Loan C
borrowings made prior to or on such date) on such date, the Term Loan D Facility
(without regard to any Term Loan D borrowings made prior to or on such date) on
such date, the Term Loan E Facility (without regard to any Term Loan E
borrowings made prior to or on such date) and the Term Loan F Facility (without
regard to any Term Loan F borrowings made prior to or on such date) on such date
exceeds the sum of the Term Loan A Borrowing Base on such date, the Term Loan B
Borrowing Base on such date, the Term Loan C Borrowing Base on such date,
therein Loan D Borrowing Base on such date, the Term Loan E Borrowing Base on
such date and the Term Loan F Borrowing Base on such date."
(e) The definition of "Term Loan Borrowing Bases" in Section 1.1 of the
Existing Credit Agreement is hereby deleted in its entirety and replaced by the
following:
" "Term Loan Borrowing Bases": the collective reference to the Term Loan A
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Borrowing Base, the Term Loan B Borrowing Base, the Term Loan C Borrowing Base,
the Term Loan D Borrowing Base, the Term Loan E Borrowing Base and the Term Loan
F Borrowing Base."
(f) The definition of "Term Loan E Borrowing Base" in Section 1.1 of the
Existing Credit Agreement is hereby deleted in its entirety and replaced by the
following:
" "Term Loan E Borrowing Base": at any time, an amount equal to the lesser
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of (i) 80% (or such other percentage as the Lender shall determine in its sole
discretion) of the Forced Liquidation Value, after deduction of any applicable
Collateral Reserves, at such time, of all Term Loan E Aircraft and (ii) the
purchase therefor price paid by the Borrower to First Security Bank, National
Association."
(g) The definition of "Term Loan Facilities" in Section 1.1 of the Existing
Credit Agreement is hereby deleted in its entirety and replaced by the
following:
" "Term Loan Facilities": the collective reference to the Term Loan A
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Facility, the Term Loan B Facility, the Term Loan C Facility, the Term Loan D
Facility, the Term Loan E Facility and the Term Loan F Facility."
(h) The definition of "Term Loans" in Section 1.1 of the Existing Credit
Agreement is hereby deleted in its entirety and replaced by the following:
" "Term Loans": the collective reference to Term Loan A, Term Loan B, Term
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Loan C, Term Loan D, Term Loan E and Term Loan F."
2. Amendments to Section 2.3. (a) Subsection (a) of Section 2.3 of the
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Existing Credit Agreement is hereby amended by deleting the parenthetical in the
seventh line thereof in its entirety and replacing it with the following:
"(without regard to the Term Loan B Facility, the Term Loan B Borrowing Base,
the Term Loan C Facility, the Term Loan C Borrowing Base, the Term Loan D
Facility, the Term Loan D Borrowing Base, the Term Loan E Facility, the Term
Loan E Borrowing Base, the Term Loan F Facility and the Term Loan F Borrowing
Base)".
(b) Section 2.3 of the Existing Credit Agreement is hereby amended by
inserting the following at the end of such Section:
"(g) Subject to the terms and conditions hereof, the Lender agrees to make
a term loan to the Borrower in one advance (such advance, together with any
advances made in connection with the substitution of Term Loan F Aircraft or
Term Loan F Aircraft Engines pursuant to Section 2.5(f) hereof, "Term Loan F")
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on the Tenth Amendment Effective Date in the principal amount of the lesser of
(a) the Term Loan F Facility on such date and (b) the Term Loan F Borrowing Base
on such date. Term Loan F shall be dated the Tenth Amendment Effective Date,
stated to mature in the installments and amounts payable on the dates set forth
in Schedule 2.3F hereto, and bear interest for the period from the Tenth
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Amendment Effective Date on the unpaid principal amount thereof at the
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applicable interest rates per annum specified in Section 3.1 it being understood
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and agreed that notwithstanding anything to the contrary in said Schedule 2.3F,
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if the Termination Date shall occur prior to the final maturity date set forth
therein, then all amounts owing under Term Loan F, including accrued interest,
shall become due and payable on such Termination Date. All payments of
principal thereof shall reduce the Term Loan F Facility on a dollar-for-dollar
basis."
3. Amendments to Section 2.5. Section 2.5 of the Existing Credit Agreement
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is hereby amended by inserting the following at the end of such Section:
"(f) At the request of the Borrower and after substitution of a Term Loan F
Aircraft, a Term Loan F Aircraft Engine or a Term Loan F Propeller (the
"Substitute Term Loan F Aircraft Engine or Propeller") for a Term Loan F
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Aircraft, a Term Loan F Aircraft Engine or a Term Loan F Propeller which has
been sold or has suffered an Event of Loss within six months after repayment of
Term Loan F to the extent and as required by Section 3.3(d) hereof, the Lender
may make an advance in an amount equal to the least of (i) 80% (or such other
percentage as the Lender shall determine in its sole discretion) of the Forced
Liquidation Value of the Substitute Term Loan F Aircraft or Engine, less any
applicable Collateral Reserve, (ii) the amount, if any, by which (A)
$2,100,000.00 minusall repayments of principal made, or required to have been
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made on or prior to the date of such advance in accordance with Schedule
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2.3Fhereto exceeds (B) the outstanding principal balance of Term Loan F on such
date (prior to the making of such advance) and (iii) the purchase price paid by
the Borrower for the Substitute Term Loan F Aircraft, Engine or Propeller. Each
such advance, if any, shall be made in the sole and absolute discretion of the
Lender and shall be deemed to comprise part of Term Loan F for all purposes
hereunder and shall increase the Term Loan F Facility on a dollar-for-dollar
basis. From and after the making of such advance the outstanding principal
balance of Term Loan F shall include the amount of such advance, interest shall
be payable on such amount, and the amount of each remaining scheduled principal
repayment shall be increased by an amount equal to (x) the amount of such
advance times(y) a fraction the numerator of which is an amount equal to such
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scheduled principal repayment and the denominator of which is the aggregate
amount of all remaining scheduled principal repayments."
4. Amendments to Section 3.3. Paragraph (b) of Section 3.3 of the Existing
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Credit Agreement is hereby deleted in its entirety and replaced by the
following:
"(b) (i) If on any date on which a Borrowing Base Certificate is required to be
delivered pursuant to Section 6.2(c), the aggregate outstanding principal amount
of the Term Loans exceeds an amount equal to the sum of the Term Loan Borrowing
Bases and the Revolver Reserve, the Borrower shall immediately prepay the Term
Loans in an aggregate amount equal to the amount of such excess. The amount of
such payment shall reduce the Term Loan Facilities on a dollar-for-dollar basis
and shall be applied (A) first against the repayment of Term Loan A to the
extent that the outstanding principal amount of Term Loan A exceeds the Term
Loan A Borrowing Base, then against the repayment of Term Loan B to the extent
that the outstanding principal amount of Term Loan B exceeds the Term Loan B
Borrowing Base, then against the repayment of Term Loan C to the extent that the
outstanding principal amount of Term Loan C exceeds the Term Loan C Borrowing
Base, then against the repayment of Term Loan D to the extent that the
outstanding principal amount of Term Loans D exceeds the Term Loan D Borrowing
Base, then against the repayment of Term Loan E to the extent that the
outstanding principal amount of Term Loans E exceeds the Term Loan E Borrowing
Base, and then against the repayment of Term Loan F to the extent that the
outstanding principal amount of Term Loans F exceeds the Term Loan F Borrowing
Base, and (B) in each such case, against scheduled repayments of principal on a
pro ratabasis.
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(ii) Without in any way limiting the provisions of clause (i) of this
Section 3.3(b), if at any time during the period commencing with and including
month 25 and ending with and including month 35, in each case as set forth on
Schedule 2.3B hereto, the outstanding principal amount of Term Loan B exceeds
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the sum of (i) the Term Loan B Borrowing Base, (ii) the excess if any of the
Term Loan A Borrowing Base over the outstanding principal amount of Term Loan A,
(iii) the excess, if any, of the Term Loan C Borrowing Base over the outstanding
principal amount of Term Loan C, (iv) the excess, if any, of the Term Loan D
Borrowing Base over the outstanding principal amount of Term Loan D, (v) the
excess, if any, of the Term Loan E Borrowing Base over the outstanding principal
amount of Term Loan E, and (vi) the excess, if any, of the Term Loan F Borrowing
Base over the outstanding principal amount of Term Loan F, the Borrower shall
immediately prepay Term Loan B in an amount equal to such deficiency.
(iii) Without in any way limiting the provisions of clause (i) of this
Section 3.3(b), if at any time during the period commencing with and including
month 22 and ending with and including month 26, in each case as set forth on
Schedule 2.3C hereto, the outstanding principal amount of Term Loan C exceeds
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the sum of (i) the Term Loan C Borrowing Base, (ii) the excess if any of the
Term Loan A Borrowing Base over the outstanding principal amount of Term Loan A,
(iii) the excess if any of the Term Loan B Borrowing Base over the outstanding
principal amount of Term Loan B, (iv) the excess if any of the Term Loan D
Borrowing Base over the outstanding principal amount of Term Loan D, (v) the
excess, if any, of the Term Loan E Borrowing Base over the outstanding principal
amount of Term Loan E and (vi) the excess, if any, of the Term Loan F Borrowing
Base over the outstanding principal amount of Term Loan F, the Borrower shall
immediately prepay Term Loan C in an amount equal to such deficiency.
(iv) Without in any way limiting the provisions of clause (i) of this
Section 3.3(b), if at any time during the period commencing with and including
month 22 and ending with and including month 26, in each case as set forth on
Schedule 2.3D hereto, the outstanding principal amount of Term Loan D exceeds
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the stun of (i) the Term Loan D Borrowing Base, (ii) the excess if any of the
Term Loan A Borrowing Base over the outstanding principal amount of Term Loan A,
(iii) the excess if any of the Term Loan B Borrowing Base over the outstanding
principal amount of Term Loan B, (iv) the excess if any of the Term Loan C
Borrowing Base over the outstanding principal amount of Term Loan C, (v) the
excess, if any, of the Term Loan E Borrowing Base over the outstanding principal
amount of Term Loan E, and (vi) the excess, if any, of the Term Loan F Borrowing
Base over the outstanding principal amount of Term Loan F, the Borrower shall
immediately prepay Term Loan D in an amount equal to such deficiency."
5. Amendments to Section 3.5(g).Section 3.5(g) of the Existing Credit
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Agreement is hereby deleted in its entirety and replaced by the following:
"(g) The Borrower agrees that, upon the request of the Lender, the Borrower
will execute and deliver to the Lender (i) a promissory note of the Borrower
evidencing Term Loan A of the Lender, in form and substance acceptable to the
Lender ("Term Note A"), (ii) a promissory note of the Borrower evidencing Term
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Loan B of the Lender, in form and substance acceptable to the Lender ("Term Note
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B"), (iii) a promissory note of the Borrower evidencing Term Loan C of the
Lender, in form and substance acceptable to the Lender ("Term Note C"), (iv) a
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promissory note of the Borrower evidencing Term Loan D of the Lender, in form
and substance acceptable to the Lender ("Term Note D"), (v) a promissory note of
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the Borrower evidencing Term Loan E of the Lender, in form and substance
acceptable to the Lender ("Term Note E") (vi) a promissory note of the Borrower
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evidencing Term Loan F of the Lender, in form and substance acceptable to the
Lender ("Term Note F"), (vii) a promissory note of the Borrower evidencing the
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Revolver Advances of the Lender in form and substance acceptable to the Lender
(a "Revolver Note"), and/or (viii) a promissory note of the Borrower evidencing
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the Open Purchasing Revolver Advances of the Lender in form and substance
acceptable to the Lender (an "Open Purchasing Revolver Note")."
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6. Amendments to Section 6.2(c). Section 6.2(c) is hereby deleted in its
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entirety and replaced by the following: "(c) prior to 2:00 p.m., New York City
time on each Business Day, a Borrowing Base Certificate showing the Revolver
Borrowing Base, the Term Loan A Borrowing Base, the Term Loan B Borrowing Base,
the Term Loan C Borrowing Base the Term Loan D Borrowing Base and the Term Loan
F Borrowing Base and the Term Loan F Borrowing Base (but only, (i) in the case
of the Term Loan A Borrowing Base, in connection with the delivery of the first
such certificate hereunder and in each case that the Term Loan A Borrowing Base
changes from the amount thereof most recently reported, (ii) in the case of the
Term Loan B Borrowing Base, in connection with the delivery of such certificate
on the First Amendment Effective Date and in each case that the Term Loan B
Borrowing Base changes from the amount thereof most recently reported, (iii) in
the case of the Term Loan C Borrowing Base, in connection with the delivery of
such certificate on the Second Amendment Effective Date and in each case that
the Term Loan C Borrowing Base changes from the amount thereof most recently
reported, (iv) in the case of the Term Loan D Borrowing Base, in connection with
the delivery of such certificate on the Third Amendment Effective Date and
in each case that the Term Loan D Borrowing Base changes from the amount thereof
most recently reported, (v) in the case of the Term Loan E Borrowing Base, in
connection with the delivery of such certificate on the Ninth Amendment
Effective Date and in each case that the Term Loan E Borrowing Base changes from
the amount thereof most recently reported, and (vi) in the case of the Term Loan
F Borrowing Base, in connection with the delivery of such certificate on the
Tenth Amendment Effective Date and in each case that the Term Loan F Borrowing
Base changes from the amount thereof most recently reported, in each case as of
the immediately preceding Business Day, certified as complete and correct by a
Responsible Officer or any vice president on behalf of the Borrower, which
Borrowing Base Certificate shall disclose daily updates of the amount of
Eligible Accounts and Eligible Lease Payment Receivables, weekly updates of the
amount of Eligible Inventory and the Forced Liquidation Value of Approved
Aircraft when required;"
7. Amendments to Schedule I. Schedule I to the Existing Credit Agreement is
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hereby amended in its entirety to read as is set forth on Schedule I
hereto.
8. Amendments to Schedule 1.1. Schedule 1.1 to the Existing Credit
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Agreement is hereby amended in its entirety to read as is set forth on Schedule
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1.1 hereto.
9. Amendments to Schedules 2.3A, 2.3B, 2.3C, 2.3D and 2.3E. Schedules 2.3A,
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2.3B, 2.3C, 2.3D and 2.3E are hereby amended to include Schedule 2.3F,
which shall read as is set forth on Schedule 2.3F hereto.
ARTICLE IV
Conditions to Effectiveness
This Tenth Amendment, and the modifications to the Credit Agreement
provided for herein, shall become effective on the date (the "Tenth Amendment
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Effective Date") on which all of the following conditions have been (or are
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concurrently being) satisfied:
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1. Each of the Tenth Amendment Documents shall have been executed and
delivered by each party thereto.
2. The Lender shall have received executed legal opinions of Smith Gambrell
& Russell, LLP, special counsel to the Borrower, in form and substance
satisfactory to the Lender and taking into account this Tenth Amendment and the
matters contemplated hereby (including, without limitation, opinions with
respect to the validity of the Tenth Amendment Documents and the effectiveness
of UCC filings in each state where Collateral described therein is located).
Such legal opinion shall cover such matters incident to the transactions
contemplated by this Tenth Amendment and the other Tenth Amendment Documents as
the Lender may reasonably require.
3. The Lender shall have received the executed legal opinion of Crowe &
Dunlevy, special FAA counsel to the Borrower, in form and substance satisfactory
to the Lender taking into account this Ninth Amendment and the matters
contemplated hereby. Such legal opinion shall cover such matters incident to
the transactions contemplated by this Ninth Amendment and the other Ninth
Amendment Documents as the Lender may reasonably require.
4. The Lender shall have received a copy, in form and substance reasonably
satisfactory to the Lender, of the corporate resolutions of the Borrower,
authorizing the Aircraft Acquisition and the execution, delivery and performance
of this Tenth Amendment and the other Tenth Amendment Documents to which the
Borrower is a party, certified by the Secretary or an Assistant Secretary of the
Borrower as of the Tenth Amendment Effective Date, which certificates shall
state that the resolutions or authorizations thereby certified have not been
amended, modified, revoked or rescinded as of the date of such certificate.
5. The Lender shall have received a certificate of the Secretary or an
Assistant Secretary of the Borrower, dated the Tenth Amendment Effective Date,
as to the incumbency and signature of the officer(s) of the Borrower executing
each Tenth Amendment Document to which it is a party and any certificate or
other document to be delivered by it pursuant hereto, together with evidence of
the incumbency of such Secretary or Assistant Secretary.
6. The Lender shall have received true, correct and complete copies of the
Governing Documents of the Borrower, certified as of the Tenth Amendment
Effective Date, as true, correct and complete copies thereof by the Secretary or
an Assistant Secretary of the Borrower.
7. The Lender shall have received copies of certificates dated as of a
recent date from the Secretary of State or other appropriate authority of such
jurisdiction, evidencing the good standing of the Borrower in the State of its
organization and in each State where the ownership, lease or operation of
property or the conduct of business requires it to qualify as a foreign
corporation or other entity except where the failure to so qualify would not
have a Material Adverse Effect.
8. The Lender shall have received all documents required to be delivered
under Article Three of the Term Loan F Aircraft Chattel Mortgage.
9. Each of the representations and warranties made by the Borrower in or
pursuant to the Credit Documents shall be true and correct in all material
respects on and as of the Tenth Amendment Effective Date as if made on and as of
such date (except to the extent the same relate to another, earlier date,
in which case they shall be true and correct in all material respects as of such
earlier date).
10. No Default or Event of Default shall have occurred and be continuing.
11. All corporate and other proceedings, and all documents, instruments and
other legal matters in connection with the transactions contemplated by the
Tenth Amendment Documents, the Existing Credit Agreement, the Credit Agreement
and the other Credit Documents shall be reasonably satisfactory in form and
substance to the Lender, and the Lender shall have received such other documents
in respect of any aspect or consequence of the transactions contemplated
hereby or thereby as it shall reasonably request.
12. The Lender shall have received a Borrowing Base Certificate showing the
Revolver Borrowing Base, the Term Loan A Borrowing Base, the Term Loan B
Borrowing Base, the Term Loan C Borrowing Base, the Term Loan D Borrowing Base,
the Term Loan E Borrowing Base and the Term Loan F Borrowing Base, in each case
as of the Business Day immediately preceding the Tenth Amendment Effective Date,
with appropriate insertions and dated the Tenth Amendment Effective Date,
satisfactory in form and substance to the Lender, executed by a Responsible
Officer or any Vice President of the Borrower.
13. The Lender shall have received evidence in form and substance
satisfactory to it that all of the requirements of Section 6.6 of the Existing
Credit Agreement and Section 5(o) of the Borrower Security Agreement shall have
been satisfied with respect to the Term Loan F Aircraft.
14. The Lender shall have received evidence in form and substance
satisfactory to it that all filings, recordings, registrations and other
actions, including, without limitation, the filing of financing statements on
forms UCC-l, necessary or, in the opinion of the Lender, desirable to perfect
the Liens created by the Security Documents with respect to the Term Loan F
Aircraft shall have been completed.
15. The Borrower shall have acquired the Term Loan F Aircraft free and clear
of all Liens.
16. The Lender shall have received each additional document, instrument,
legal opinion or item of information reasonably requested by the Lender,
including, without limitation, a copy of any debt instrument, security agreement
or other material contract to which the Borrower is be a party.
ARTICLE V
Miscellaneous
1. Closing Fee; Payment of Expenses. Without limiting its obligations under
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Section 9.5 of the Existing Agreement, the Borrower agrees to pay or
reimburse the Lender for all of its reasonable costs and expenses incurred in
connection with this Tenth Amendment and the other Tenth Amendment Documents,
including, without limitation, the reasonable costs and expenses of Cadwalader,
Wickersham & Taft, counsel to the Lender and expressly acknowledge that their
obligations hereunder constitute "Obligations" within the meaning of the
Existing Credit Agreement.
2. No Other Amendments; Confirmation. Except as expressly amended, modified
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and supplemented hereby and by the documents related hereto, the provisions
of the Existing Credit Agreement and the other Credit Documents shall remain in
full force and effect.
3. Acknowledgment. The Borrower hereby acknowledges that the Term Loan F
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Chattel Mortgage constitutes an Aircraft Chattel Mortgage under the Agreement.
4. Affirmation by Borrower. The Borrower hereby consents to the execution
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and delivery of this Tenth Amendment and each of the other Tenth Amendment
Documents to which Borrower is a party and reaffirms its obligations under the
Credit Documents.
5. Governing Law; Counterparts. (a) This Tenth Amendment and the rights
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and obligations of the parties hereto shall be governed by, and construed and
interpreted in accordance with, the laws of the State of New York.
(b) This Tenth Amendment may be executed by one or more of the parties
hereto on any number of separate counterparts, and all of said counterparts
taken together shall be deemed to constitute one and the same instrument. A set
of the counterparts of this Tenth Amendment signed by all the parties shall
be lodged with the Borrower and the Lender. This Tenth Amendment may be
delivered by facsimile transmission of the relevant signature pages hereof.
[SIGNATURE PAGE FOLLOWS ]
IN WITNESS WHEREOF, the parties hereto have caused this Tenth Amendment to
be duly executed and delivered as of the day and year first above written.
INTERNATIONAL AIRLINE SUPPORT GROUP, INC.
By
Name:
Title:
GMAC COMMERCIAL CREDIT LLC,
as successor in interest by merger to BNY Financial Corporation
By
Name:
Title: