EXHIBIT 10.20
SECOND AMENDMENT AGREEMENT
This Second Amendment Agreement is made as of the 28 day of July, 2000, by
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and between AIRCRAFT SERVICE INTERNATIONAL GROUP, INC., a Delaware corporation
("Borrower"), and KEY CORPORATE CAPITAL INC. ("Lender"):
WHEREAS, Borrower and Lender are parties to a certain Credit and Security
Agreement dated as of April 2, 1998, as amended and as it may from time to time
be further amended, restated or otherwise modified, that provides, among other
things, for a Revolving Loan facility and a Term Loan facility, all upon certain
terms and conditions stated therein (the "Credit and Security Agreement");
WHEREAS, Borrower and Lender desire to amend the Credit and Security
Agreement to increase the Revolving Credit Commitment and to modify certain
other provisions thereof; and
WHEREAS, each term used herein shall be defined in accordance with the
Credit and Security Agreement;
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants herein and for other valuable considerations, Borrower and Lender
agree as follows:
1. Article 1 of the Credit and Security Agreement is hereby amended to
delete the definition of "Commitment" therefrom and to insert in place thereof
the following:
"Commitment" shall mean the obligation hereunder of Lender to make Loans,
and to issue Letters of Credit, pursuant to the Revolving Credit Commitment
and Term Loan Commitment, up to an aggregate principal amount outstanding
at any one time of Twenty Million Dollars ($20,000,000), or such lesser
amount as shall be determined pursuant to Section 2.5 hereof.
2. Article 1 of the Credit and Security Agreement is hereby amended to
delete the definition of "Revolving Credit Commitment" therefrom and to insert
in place thereof the following:
"Revolving Credit Commitment" shall mean the obligation hereunder of
Lender, during the Commitment Period, to make Revolving Loans and to issue
Letters of Credit, up to an aggregate principal amount outstanding at any
time equal to the lesser of (a) Fifteen Million Dollars ($15,000,000), or
(b) the Borrowing Base.
3. The Credit and Security Agreement is hereby amended to delete Exhibit A
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therefrom and to insert in place thereof a new Exhibit A in the form of Exhibit
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1 attached hereto.
4. Concurrently with the execution of this Second Amendment Agreement,
Borrower shall:
(a) execute and deliver to Lender the Revolving Credit Note in the
form of Exhibit 1 attached hereto;
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(b) cause each Guarantor of Payment to consent, agree to and
acknowledge the terms of this Second Amendment Agreement and such Guarantor
Acknowledgment shall be in the form of Exhibit 2 attached hereto;
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(c) pay to Lender, on the date hereof, an amendment fee in an amount
equal to Fifteen Thousand Dollars ($15,000); and
(d) pay all reasonable legal fees and expenses of Lender incurred in
connection with this Second Amendment Agreement.
5. Borrower hereby represents and warrants to Lender that (a) Borrower
has the legal power and authority to execute and deliver this Second Amendment
Agreement; (b) the officer executing this Second Amendment Agreement has been
duly authorized to execute and deliver the same and bind Borrower with respect
to the provisions hereof; (c) the execution and delivery hereof by Borrower and
the performance and observance by Borrower of the provisions hereof do not
violate or conflict with the organizational agreements of Borrower or any law
applicable to Borrower or result in a breach of any provision of or constitute a
default under any other agreement, instrument or document binding upon or
enforceable against Borrower; (d) no Unmatured Event of Default or Event of
Default exists under the Credit and Security Agreement, nor will any occur
immediately after the execution and delivery of this Second Amendment Agreement
or by the performance or observance of any provision hereof; (e) Borrower has no
claim or offset against, or defense or counterclaim to, any of Borrower' s
obligations or liabilities under the Credit and Security Agreement or any
Related Writing; and (f) this Second Amendment Agreement constitutes a valid and
binding obligation of Borrower in every respect, enforceable in accordance with
its terms.
6. In consideration of this Second Amendment Agreement, Borrower hereby
waives and releases Lender and its representative shareholders, directors,
officers, employees, attorneys, affiliates and subsidiaries from any and all
such claims, offsets, defenses and counterclaims of which Borrower is aware,
such waiver and release being with full knowledge and understanding of the
circumstances and effect thereof and after having consulted legal counsel with
respect thereto.
7. Each reference that is made in the Credit and Security Agreement
shall hereafter be construed as a reference to the Credit and Security Agreement
as amended hereby. Except as herein otherwise specifically provided, all
provisions of the Credit and Security Agreement shall remain in full force and
effect and be unaffected hereby.
8. This Second Amendment Agreement may be executed in any number of
counterparts, by different parties hereto in separate counterparts and by
facsimile signature, each of which when so executed and delivered shall be
deemed to be an original and all of which taken together shall constitute but
one and the same agreement.
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9. The rights and obligations of all parties hereto shall be governed
by the laws of the State of Ohio, without regard to principles of conflicts of
laws.
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10. JURY TRIAL WAIVER. BORROWER AND LENDER WAIVE ANY RIGHT TO HAVE A
JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT OR
OTHERWISE, BETWEEN BORROWER AND LENDER, ARISING OUT OF, IN CONNECTION WITH,
RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED BETWEEN THEM IN
CONNECTION WITH THIS AGREEMENT OR ANY NOTE OR OTHER INSTRUMENT, DOCUMENT OR
AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH OR THE TRANSACTIONS
RELATED THERETO. THIS WAIVER SHALL NOT IN ANY WAY AFFECT, WAIVE LIMIT, AMEND OR
MODIFY LENDER'S ABILITY TO PURSUE REMEDIES PURSUANT TO ANY CONFESSION OF
JUDGMENT OR COGNOVIT PROVISION CONTAINED TN ANY NOTE OR OTHER INSTRUMENT,
DOCUMENT OR AGREEMENT BETWEEN BORROWER AND LENDER.
AIRCRAFT SERVICE INTERNATIONAL INC.
By:_______________________________________
Print Name: ____________________________
Title: __________________________________
KEY CORPORATE CAPITAL INC.
By:_______________________________________
Print Name: ____________________________
Title: __________________________________
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EXHIBIT 1
EXHIBIT A
REVOLVING CREDIT NOTE
$15,000,000 Cleveland, Ohio
July 28, 2000
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FOR VALUE RECEIVED, the undersigned, AIRCRAFT SERVICE INTERNATIONAL GROUP,
INC. ("Borrower"), promises to pay, on the last day of the Commitment Period, as
defined in the Credit and Security Agreement (as hereinafter defined), to the
order of KEY CORPORATE CAPITAL INC. ("Lender") at its Main Office at 127 Public
Square, Cleveland, Ohio 44114-1306, or at such other place as Lender shall
designate, the principal sum of
FIFTEEN MILLION and 00/100 . . . . . . . . . . . . . . . . . . . . DOLLARS
or the aggregate unpaid principal amount of all Revolving Loans made by Lender
to Borrower pursuant to Section 2.lA of the Credit and Security Agreement,
whichever is less, in lawful money of the United States of America. As used
herein, "Credit and Security Agreement" means the Credit and Security Agreement
dated as of April 2, 1998, between Borrower and Lender, as amended and as the
same may from time to time be further amended, restated or otherwise modified.
Capitalized terms used herein shall have the meanings ascribed to them in the
Credit and Security Agreement.
Borrower also promises to pay interest on the unpaid principal amount of
each Revolving Loan from time to time outstanding, from the date of such Loan
until the payment in full thereof, at the rates per annum which shall be
determined in accordance with the provisions of Section 2.1A of the Credit and
Security Agreement. Such interest shall be payable on each date provided for in
such Section 2.1A; provided, however, that interest on any principal portion
which is not paid when due shall be payable on demand.
The portions of the principal sum hereof from time to time representing
Prime Rate Loans and LIBOR Loans, and payments of principal of any thereof,
shall be shown on the records of Lender by such method as Lender may generally
employ; provided, however, that failure to make any such entry shall in no way
detract from Borrower's obligations under this Note.
If this Note shall not be paid at maturity, whether such maturity occurs by
reason of lapse of time or by operation of any provision for acceleration of
maturity contained in the Credit and Security Agreement, the principal hereof
and the unpaid interest thereon shall bear interest, until paid, at a rate per
annum which shall be the Default Rate. All payments of principal of and interest
on this Note shall be made in immediately available funds.
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This Note is the Revolving Credit Note referred to in the Credit and
Security Agreement. Reference is made to the Credit and Security Agreement for a
description of the right of the undersigned to anticipate payments hereof, the
right of the holder hereof to declare this Note due prior to its stated
maturity, and other terms and conditions upon which this Note is issued.
Except as expressly provided in the Credit and Security Agreement, Borrower
expressly waives presentment, demand, protest and notice of any kind.
JURY TRIAL WAIVER. BORROWER WAIVES ANY RIGHT TO HAVE A JURY PARTICIPATE IN
RESOLVING ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE, BETWEEN
BORROWER AND LENDER, ARISING OUT OF, IN CONNECTION WITH, RELATED TO, OR
INCIDENTAL TO THE RELATIONSHIP ESTABLISHED BETWEEN THEM IN CONNECTION WITH THE
CREDIT AND SECURITY AGREEMENT OR THIS NOTE OR OTHER INSTRUMENT, DOCUMENT OR
AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH OR THE TRANSACTIONS
RELATED THERETO. THIS WAIVER SHALL NOT iN ANY WAY AFFECT, WAIVE, LIMIT, AMEND OR
MODIFY LENDER'S ABILITY TO PURSUE REMEDIES PURSUANT TO ANY PROVISION CONTAINED
IN ANY NOTE OR OTHER INSTRUMENT, DOCUMENT OR AGREEMENT BETWEEN BORROWER AND
LENDER.
AIRCRAFT SERVICE INTERNATIONAL GROUP, INC.
By:____________________________________
Print Name: _________________________
Title: _______________________________
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EXHIBIT 2
GUARANTOR ACKNOWLEDGMENT
The undersigned consent and agree to and acknowledge the terms of the
foregoing Second Amendment Agreement. The undersigned further agree that the
obligations of the undersigned pursuant to the Guaranty of Payment of Debt
executed by the undersigned shall remain in full force and be unaffected hereby.
IN WITNESS WHEREOF, the foregoing acknowledgment has been executed and
delivered as of July 28, 2000.
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AIRCRAFT SERVICE INTERNATIONAL INC.
By:_______________________________________
Print Name: ____________________________
Title: __________________________________
ASIG FUELING MIAMI, INC.
By:_______________________________________
Print Name: ____________________________
Title: __________________________________
ASIG MIAMI, INC.
By:_______________________________________
Print Name: ____________________________
Title: __________________________________
ASIG GROUND SERVICES, INC.
By:_______________________________________
Print Name: ____________________________
Title: __________________________________
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