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EXHIBIT 10.115
INTERCREDITOR AGREEMENT
THIS INTERCREDITOR AGREEMENT (this "Agreement"), made as of the
5th
day of April, 2004, by and between THE CIT
GROUP/BUSINESS CREDIT, INC., A New
York corporation ("CITBC"), individually
and in its capacity as agent (in such
capacity, the "Agent") for the Senior
Lienholders under the Senior Lienholders
Loan Agreement, as hereinafter further
defined; and HILCO CAPITAL LP, a Delaware
limited partnership (herein referred to as
the "Subordinated Lienholder", as
hereinafter further defined);
WITNESSETH:
WHEREAS, Aircraft Interior Design, Inc., a Florida corporation,
Brice
Manufacturing Company, Inc., a California
corporation, TIMCO Aviation Services,
Inc., a Delaware corporation, TIMCO Engine
Center, Inc., a Delaware corporation,
TIMCO Engineered Systems, Inc., a Delaware
corporation, and Triad International
Maintenance Corporation, a Delaware
corporation (collectively, the "Borrowers"
and, individually, a "Borrower"); and
Aviation Sales Distribution Services
Company, Aviation Sales Leasing Company,
Aviation Sales Property Management
Corp., AVS/M-1, Inc., AVS/M-2, Inc.,
AVS/M-3, Inc. and Whitehall Corporation,
each a Delaware corporation, AVS/CAI, Inc.,
a Florida corporation, AVSRE, L.P.,
a Delaware limited partnership,
Hydroscience, Inc., a Texas corporation, and
TMAS/ASI, Inc., an Arkansas corporation,
(collectively, the "Guarantors" and,
individually, a "Guarantor" and, together
with the Borrowers, collectively, the
"Credit Parties" and, individually, a
"Credit Party"); CITBC and other lenders
and financial institutions (the "Senior
Lienholders", as hereinafter further
defined); and the Agent have each entered
into a certain Financing Agreement,
dated of even date herewith (such Financing
Agreement, as amended, modified,
supplemented or restated from time to time,
being herein called collectively the
"Senior Lienholders Loan Agreement" as
hereinafter further defined), pursuant to
which the Senior Lienholders have agreed to
make or extend to the Borrowers a
$35.0 million revolving credit loan and a
$7.0 million term loan (the "Senior
Lienholders Term Loan") evidenced by the
Borrowers' promissory notes, also dated
of even date herewith, in the aggregate
original principal amount of up to $35.0
million (the "Senior Lrenholders Revolving
Notes") in the aggregate original
principal amount of $7.0 million (the
"Senior Lienholders Term Notes"), upon the
term and subject to the conditions set
forth therein (the Senior Lienholders
Loan Agreement, the Senior Lienholders
Revolving Notes, the Senior Lienholders
Term Notes, and all related documentation
as in effect from time to time, being
herein referred to as the "Senior
Lienholders Documents");
WHEREAS, the Credit Parties have each entered into a certain
Financing
Agreement with the Subordinated Lienholder,
dated of even date herewith (such
Financing Agreement, as amended, modified,
restated or supplemented from time to
time, being herein called the "Subordinated
Lienholder Loan Agreement"),
pursuant to which the Subordinated
Lienholder has agreed to make an $8.0 million
term loan to the Borrowers (the
"Subordinated Lienholder Term Loan") evidenced
by the Borrowers' promissory note, also
dated of even date herewith, in the
original principal amount of $8.0 million
(the "Subordinated Lienholder Term
Note"), upon the terms and subject to the
conditions set forth therein (the
Subordinated Lienholder Loan Agreement, the
Subordinated Lienholder Term Note,
and all related documentation as in effect
from time to time, being herein
referred to as the "Subordinated Lienholder
Documents");
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WHEREAS, to induce the Subordinated Lienholder and the Senior
Lienholders to enter into the Subordinated
Lienholder Documents and the Senior
Lienholders Documents, respectively, and to
make the loans and extend the credit
contemplated thereby, the Guarantors have
executed guaranties as part of the
Subordinated Lienholder Documents and the
Senior Lienholders Documents thereby
guaranteeing all of the indebtedness and
other obligations owing by the
Borrowers to the Subordinated Lienholder
and the Agent and the Senior
Lienholders, respectively, thereunder;
WHEREAS, pursuant to the Subordinated Lienholder Documents and
the
Senior Lienholders Documents, the Credit
Parties have granted Liens in
substantially all of their property to the
Subordinated Lienholder and the Agent
for the benefit of the Senior Lienholders,
respectively; and
WHEREAS, the Subordinated Lienholder and the Agent wish to enter
into
this Agreement for the purpose of
establishing the priorities of their
respective Liens (as hereinafter defined)
in the property of the Credit Parties,
and for the purpose of setting forth
certain other agreements between them with
respect to their respective agreements with
the Credit Parties;
NOW, THEREFORE, for good and valuable consideration, the receipt
and
sufficiency of which are hereby
acknowledged, the parties hereto agree as
follows:
1. Certain Definitions. All capitalized terms used in this
Agreement
without definition shall have the meanings
ascribed to such terms in the Senior
Lienholders Loan Agreement. In addition to
the terms defined elsewhere in this
Agreement, the following terms shall have
the following meanings for the
purposes of this Agreement:
"Adjusted Borrowing Base" shall mean, at any time of
determination
thereof, an amount equal to the "Borrowing
Base" (as such time is defined in the
Senior Lienholder Loan Agreement as in
effect on the date of this Agreement) at
such time, adjusted as follows: the
Inventory Loan Cap shall be in amount equal
to (i) $15.0 million, plus (ii) any
increase in the foregoing amount that may be
agreed to by the Agent with the Borrowers
at any time that no Senior Lienholders
Event of Default or Subordinated Lienholder
Event of Default shall exist, but in
no event, without the written consent of
the Subordinated Lienholder, shall such
amount exceed $20.0 million.
"Claim" shall mean a written demand on Ex-Im Bank by the Agent
for
payment under the Ex-Im Guarantee in
accordance with the terms thereof.
"Credit Parties" shall mean the Borrowers and the Guarantors
and
"Credit Party" shall mean any of them.
"Collateral" shall mean all of the assets, properties and interests
in
property of the Credit Parties, whether now
owned or hereafter acquired or
arising, wherever located.
"Collateral Shortfall Overadvances" shall mean any Overadvances
that
result from any of the following: (i) a
decline in the value of any of the
Collateral that is included in the
calculation of the Borrowing Base, including,
without limitation, the disqualification of
any Collateral from
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inclusion in the Borrowing Base for failure
to comply with any of the
eligibility criteria set forth in the
Senior Lienholders Loan Agreement as in
effect on the date of this Agreement for
reasons arising subsequent to such
Collateral's inclusion originally in the
Borrowing Base, (ii) any act or
omission of a Credit Party in violation of
any of the Senior Lienholders
Documents, (iii) any other similar
circumstances not caused by the Agent or the
Senior Lienholders, (iv) without
duplication of any Protective Advances, the
charging to the Borrowers' Revolving Loan
Account (as such term is defined in
the Senior Lienholders Loan Agreement) when
due of interest, fees, costs,
expenses, indemnities and other charges
with respect to any of the Senior
Lienholders Obligations (except with
respect to the Senior Lienholders Excluded
Obligations), or (v) the imposition by the
Agent at any time or from time to
time of any Availability Reserve other than
the Minimum Availability Reserve
which the Agent may elect to establish in
its sole and exclusive discretion
under the Senior Lienholders Loan
Agreement.
"Default" shall mean an event or condition the occurrence of
which
would, with the giving of notice or the
passage of time or both, become an Event
of Default.
"Deposit Account Collateral" shall mean that portion of the
Collateral
consisting of "deposit accounts" (as such
term is defined in the UCC) and the
proceeds thereof.
"Documents" shall mean the Subordinated Lienholder Documents and
the
Senior Lienholders Documents or any or all
of them as the context may require.
"Enforcement Action" shall have the meaning ascribed to such term
in
Section 6.1 of this Agreement.
"Exercise Notice" shall have the meaning ascribed to such term
in
Section 9.1 of this Agreement.
"Event of Default" shall mean a Subordinated Lienholder Event
of
Default or a Senior Lienholders Event of
Default or either or both of them as
the context may require.
"Foreign Borrowing Base Collateral" shall mean that portion of
the
Collateral consisting of the assets of the
Borrowers comprising the Foreign
Borrowing Base.
"Insolvency Proceeding" shall mean any insolvency or bankruptcy
case or
proceeding or any receivership,
liquidation, reorganization or other similar
case or proceeding in connection
therewith.
"Insurance and Condemnation Proceeds" shall mean proceeds or
payments
payable to the Credit Parties with respect
to any loss, casualty or damage to,
or condemnation of, the Collateral or any
part thereof.
"Landlord Agreement" shall mean the Landlord's Agreement executed
by
each landlord of a facility or warehouse
leased to a Credit Party constituting
one of the Documents pursuant to which such
landlord grants certain assurances
to each Lienholder with respect to its
respective Lien in such Credit Party's
leasehold estate in such facility or
warehouse and the Collateral located
thereon.
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"Landlord Availability Reserves" shall mean any Availability
Reserves
established by the Agent pursuant to
clauses (b)(i) or (ii) of the definition
thereof as set forth in the Senior
Lienholders Loan Agreement.
"Lienholders" shall mean the Subordinated Lienholder, on the one
hand,
and the Agent for the benefit of the Senior
Lienholders, on the other hand, and
"Lienholder" shall mean either of them.
"Liens" shall mean the liens and security interests granted by
the
Credit Parties or any of them to each
Lienholder under the Documents and a
"Lien" shall refer to the liens and
security interests granted by the Credit
Parties or any of them to one of the
Lienholders.
"Obligations" shall mean the Senior Lienholders Obligations and
the
Subordinated Lienholder Obligations or any
or all of them as the context may
require.
"Option Period" shall have the meaning ascribed to such term in
Section
9.1 of this Agreement.
"Option Triggering Event" shall have the meaning ascribed to such
term
in Section 9.1 of this Agreement.
"Overadvance" shall mean an "Overadvance" as such term is defined
in
the Senior Lienholders Loan Agreement as in
effect on the date of this
Agreement.
"Person" shall mean an individual, partnership, corporation,
joint
stock company, land trust, business or
unincorporated organization, or a
government or agency or political
subdivision thereof.
"Possessory Collateral" shall mean any Collateral in which the
Agent's
Lien is perfected by the Agent's taking of
possession of such Collateral
pursuant to the provisions of the UCC and
other applicable law.
"Protective Advances" shall mean any advances, costs, expenses,
liabilities or other obligations made or
incurred by the Agent or the Senior
Lienholders after the occurrence and during
the continuance of a Senior
Lienholders Event of Default to manage,
operate, evaluate, insure, appraise,
preserve, protect, handle, store,
transport, sell or otherwise dispose of any of
the Collateral in an aggregate amount
outstanding at any time not to exceed $1.0
million.
"Purchasing Party" shall have the meaning ascribed to such term
in
Section 9.2 of this Agreement.
"Remedies Block" shall have the meaning ascribed to such term
in
Section 6.1 of this Agreement.
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"Revolving Line of Credit" shall mean the $35.0 million revolving
line
of credit and letter of credit facility
extended by the Senior Lienholders to
the Borrowers under the Senior Lienholders
Loan Agreement.
"Revolving Line of Credit Cap Amount" shall mean the sum of (i)
$35.0
million, plus (ii) any increase in the
foregoing amount that may be agreed to by
the Agent and the Senior Lienholders with
the Borrowers at any time that no
Senior Lienholders Event of Default or
Subordinated Lienholder Event of Default
shall exist, but in no event, without the
written consent of the Subordinated
Lienholder, shall such amount exceed $45.0
million.
"Selling Party" shall have the meaning ascribed to such term in
Section
9.2 of this Agreement.
"Senior Lienholders" shall mean CITBC and the other lenders and
financial institutions that are parties to
the Senior Lienholders Loan Agreement
from time to time, and any other lender or
lenders refinancing or refunding all
or any portion of the Senior Lienholders
Obligations.
"Senior Lienholders Early Termination Fee" shall mean the
"Early
Termination Fee" as defined in the Senior
Lienholders Loan Agreement.
"Senior Lienholders Event of Default" shall mean an "Event of
Default"
as defined in the Senior Lienholders Loan
Agreement as in effect on the date of
this Agreement.
"Senior Lienholders Excluded Obligations" shall mean, at any time
of
the determination thereof, the amount by
which the aggregate amount of the
Senior Lienholders Obligations at such time
are in excess of the aggregate of
the following:
(i) the lesser of (a) the Revolving Line of Credit Cap Amount
at such time or (b) the Adjusted Borrowing Base at such time;
plus
(ii) $7.0 million as reduced from time to time by principal
payments and prepayments received by the Senior Lienholders on
the
Senior Lienholders Term Loan; plus
(iii) the amount of all Collateral Shortfall Overadvances
outstanding on such date; plus
(iv) up to $3.5 million of all other Overadvances made by the
Senior Lienholders which are outstanding on such date; plus
(v) the amount of the Protective Advances outstanding on such
date.
For the purposes
of calculating the amount of the Senior Lienholders
Excluded Obligations, (a) Collateral
Shortfall Overadvances and Protective
Advances shall be deemed repaid only after
all other Overadvances which are not
Senior Lienholders Excluded Obligations
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have been paid in full and (b) Collateral
Shortfall Overadvances shall be deemed
repaid only after all Protective Advances
have been paid in full.
"Senior Lienholders Loan Agreement" shall mean the Financing
Agreement,
dated of even date herewith, among the
Credit Parties, the Agent and the Senior
Lienholders that are parties thereto, as in
effect on the date hereof, and as
the same may be amended, restated,
supplemented or otherwise modified from time
to time, and including any agreement with
the same or other lenders extending
the maturity of, or restructuring,
refinancing or replacing all or any portion
of the indebtedness and obligations owing
to the Agent and the Senior
Lienholders thereunder.
"Senior Lienholders Obligations" shall mean all indebtedness,
liabilities and obligations of any and
every kind now or hereafter owing by the
Credit Parties to the Agent and the Senior
Lienholders under the Senior
Lienholders Documents, even if the amount
of such indebtedness, liabilities and
obligations is in excess of the Senior
Secured Debt Cap.
"Senior Secured Debt Cap" shall have the meaning ascribed to such
term
in the Subordinated Lienholder Loan
Agreement.
"Subordinated Lienholder" shall mean Hilco Capital LP, a
Delaware
limited partnership, and its successors and
assigns, and any subsequent holder
or holders of any of the Subordinated
Lienholder Obligations.
"Subordinated Lienholder Event of Default" shall mean an "Event
of
Default" as defined in the Subordinated
Lienholder Loan Agreement as in effect
on the date of this Agreement.
"Subordinated Lienholder Material Event of Default" shall mean
a
Subordinated Lienholder Event of Default
arising under any of the following
provisions of the Subordinated Lienholder
Loan Agreement as in effect on the
date of this Agreement: (i) Section
10.1(c), (ii) that part of Section 10.1(e)
arising from the failure of the Borrower to
comply with the financial covenants
set forth in Sections 7.10(b) or (c) of the
Subordinated Lienholder Loan
Agreement, or (iii) Section 10.1(f).
"Subordinated Lienholder Obligations" shall mean all
indebtedness,
liabilities and obligations of any and
every kind now or hereafter owing by the
Credit Parties to the Subordinated
Lienholder under the Subordinated Lienholder
Documents.
"UCC" shall mean the Uniform Commercial Code as in effect from time
to
time in the State of North Carolina.
2. Lien Subordination.
2.1 Collateral. The Lienholders agree that at all times,
whether before, after or during the
pendency of any bankruptcy, reorganization
or other insolvency proceeding, and
notwithstanding the priorities which would
ordinarily result from the order of
execution or granting of any Lien in the
Collateral or the order of filing of any
financing statements or recording of
any deeds of trust, mortgages or any other
security documents now or hereafter
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constituting part of the Subordinated
Lienholder Documents or the Senior
Lienholders Documents with respect to the
Collateral, or any provision of the
UCC or any other applicable law to the
contrary, the Liens of the Agent in the
Collateral arising pursuant to the Senior
Lienholders Documents as security for
all of the Senior Lienholders Obligations,
except for the Senior Lienholders
Excluded Obligations, shall be at all times
first priority Liens in the
Collateral, superior to the Liens of the
Subordinated Lienholder in the
Collateral arising pursuant to the
Subordinated Lienholder Documents, and the
Liens of the Subordinated Lienholder in the
Collateral shall be junior and
subordinate to the Liens of the Agent
therein as security for all of the Senior
Lienholders Obligations, except for the
Senior Lienholders Excluded Obligations.
All proceeds of the Collateral shall be
applied to the Obligations in accordance
with the provisions of Section 5
hereof.
2.2 No Waiver of Subordination Provisions.
(a) No right of the Agent to enforce the provisions of this
Agreement shall at any time or in any way
be prejudiced or impaired by any act
or failure to act on the part of the Credit
Parties or by any act or failure to
act by the Agent or the Senior Lienholders,
or by any non-compliance by the
Credit Parties with the terms, provisions
and covenants of any of the
Subordinated Lienholder Documents,
regardless of any knowledge thereof the Agent
or any Senior Lienholder may have or be
otherwise charged with.
(b) Without in any way limiting the generality of subsection
(a) of this Section 2.2, but subject to the
provisions of subsection (c) of this
Section 2.2, the Agent and the Senior
Lienholders may, at any time and from time
to time, without the consent of or notice
to the Subordinated Lienholder,
without incurring responsibility to the
Subordinated Lienholder and without
impairing or releasing the lien
subordination provided hereunder, do any one or
more of the following:
(i) Amend, modify, waive or consent to any term or provision
set forth in any of the Senior Lienholders Documents;
(ii) Change the manner, place or terms of payment or extend
the time of payment of, or refund or refinance, or renew or alter,
any
of the Senior Lienholders Obligations;
(iii) Sell, exchange, release or otherwise deal with any
property pledged, mortgaged or otherwise securing all or any
portion of
the Senior Lienholders Obligations;
(iv) Release any Person liable in any manner for the payment
or collection of any of the Senior Lienholders Obligations;
(v) Exercise or refrain from exercising any rights against the
Credit Parties or any other Person; and
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(vi) Take any other action which might otherwise constitute a
defense available to, or a discharge of, the Subordinated
Lienholder in
respect of its lien subordination as provided pursuant to the terms
of
this Agreement.
(c) Notwithstanding the foregoing provisions of this Section
2.2, the Agent and the Senior Lienholders
shall not, without the prior written
consent of the Subordinated Lienholder, to
be granted in each instance in the
Subordinated Lienholder's sole and
exclusive discretion:
(i) amend the definitions of any of the following terms, nor
any component of the definition of any of the following terms,
from
those set forth in the Senior Lienholders Loan Agreement as in
effect
on the date of this Agreement, if the effect of such amendment is
to
create additional Availability or increase the amount of the
Borrowing
Base: (a) Availability, (b) Borrowing Base or Inventory Loan
Cap
(except in each case to the extent contemplated in the definition
of
Adjusted Borrowing Base as defined in this Agreement), (c)
Eligible
Accounts, (d) Eligible Inventory, (e) Mandatory Prepayment, (f)
Line of
Credit or Revolving Line of Credit (except in connection with
an
increase to the Revolving Line of Credit Cap Amount as defined in
this
Agreement), (g) Overadvance, (h) Minimum Availability Reserve, or
(i)
the additional Availability Reserve as described in that certain
letter
agreement as to post-closing items, dated April 8, 2004, among
the
Agent and the Companies; or
(ii) except as otherwise required or permitted by the terms of
clauses (b)(x), (y) and (z) of the definition of Availability
Reserve
in the Senior Lienholders Loan Agreement as in effect on the date
of
this Agreement, reduce or release any Landlord Availability
Reserve
which the Agent may elect to establish from time to time, it
being
understood that nothing herein contained shall in any way obligate
the
Agent to
establish any Landlord Availability Reserve, or, once
established, reduce or release such Landlord Availability Reserve
or
any part thereof for the reasons set forth in such clauses (b)(x),
(y)
and (z).
(d) The provisions of this Agreement shall continue to be
effective or be reinstated, as the case may
be, if at any time payment of any
Senior Lienholders Obligations is rescinded
or must otherwise be returned by the
Agent or the Senior Lienholders upon the
insolvency, bankruptcy or
reorganization of a Credit Party, or
otherwise, all as though such payment had
not been made.
3. Appointment of the Agent as Collateral Agent. The
Subordinated
Lienholder hereby appoints and designates
the Agent, and the Agent agrees to
act, as the Subordinated Lienholder's
collateral agent within the meaning of the
term "secured party" under Section
9-102(75) of the UCC for the sole and limited
purpose of perfecting the Liens granted to
the Subordinated Lienholder in any
Deposit Account Collateral to the extent
that the Agent is a party to, and the
Subordinated Lienholder is not a party to,
a control agreement contemplated by
Section 9-105(a)(2) of the UCC perfecting
the Liens of the Agent in such Deposit
Account Collateral, and in any Possessory
Collateral. In connection with the
Agent's acting as such collateral agent for
the Subordinated Lienholder
hereunder, the parties further agree as
follows:
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3.1
No Liability of the Agent. All Liens held by the Agent in
the Possessory Collateral and the Deposit
Account Collateral in its capacity as
collateral agent for the Subordinated
Lienholder shall be subject to, and any
proceeds of the Possessory Collateral and
the Deposit Account Collateral shall
be distributed to the Lienholders in
accordance with, the provisions of this
Agreement. In its capacity as collateral
agent, the Agent shall have no duties
or responsibilities of any kind or nature
and it shall not be liable to the
Subordinated Lienholder for any action
taken or omitted to be taken under or in
connection with this Agreement or any of
the Documents.
3.2 No Warranties or Representations. Except as otherwise
specifically set forth in this Agreement,
the Agent does not make to the
Subordinated Lienholder any express or
implied warranty, representation or
guarantee with respect to the Obligations,
the Collateral, the Documents or any
Credit Party. The Agent shall not be
responsible to the Subordinated Lienholder
for (i) the execution, validity,
genuineness, effectiveness or enforceability
of, any of the Documents; (ii) the
validity, genuineness, enforceability,
collectibility, value, sufficiency or
existence of any Collateral, or the
perfection or priority of any Lien therein;
or (iii) the assets, liabilities,
financial condition, results of operations,
business, creditworthiness or legal
status of any Credit Party.
3.3 Indemnity. The Subordinated Lienholder agrees to indemnify
and defend the Agent (to the extent not
reimbursed by the Credit Parties, but
without limiting the indemnification
obligations of the Credit Parties under the
Documents), and to hold the Agent harmless
from and against, any and all claims,
demands, liabilities, obligations, losses,
damages, penalties, actions,
judgments, suits, proceedings, costs,
expenses or disbursements of any kind or
nature whatsoever (including reasonable
attorneys' fees and expenses) which may
be imposed on, incurred by or asserted or
initiated against the Agent in any way
arising out of its acting as collateral
agent for the Subordinated Lienholder
with respect to any of the Possessory
Collateral and the Deposit Account
Collateral (and not arising out of the
Agent's acting in any other capacity),
provided that the Subordinated Lienholder
shall not be liable to the Agent for
any of the foregoing to the extent that
they result solely from the willful
misconduct or gross negligence of the
Agent.
3.4 Exclusive Instructions of Subordinated Lienholder. After
all of the Senior Lienholders Obligations
have been paid and satisfied in full
and the Agent and the Senior Lienholders
shall have no further obligation for
the incurring of additional Senior
Lienholders Obligations, the Agent shall send
to each bank that is a party to the control
agreement among the Agent, the
Subordinated Lienholder and such bank, a
notice as permitted by such control
agreement that the bank is authorized to
honor instructions originated by the
Subordinated Lienholder directing
disposition of the funds in such deposit
account.
4. Notices of Default. The Agent shall give the Subordinated
Lienholder
notice of default, termination, demand,
acceleration, exercise of remedies and
any other notice which is of a like nature
or required to be given under the
Senior Lienholders Documents or by law, and
the Subordinated Lienholder shall
give the Agent notice of any default,
termination, demand, acceleration,
exercise of remedies and any other notice
which is of a like nature or required
to be given under the Subordinated
Lienholder Documents or by law, in each case
concurrently with the giving of such notice
to the Borrowers or any of the other
Credit Parties; provided, however,
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that no failure of either party to give
such notice shall (a) affect the
validity of such notice as to the Credit
Parties or affect the relative
priorities of the Liens established in
Section 2 hereof or (b) create the basis
for any liability of one Lienholder to the
other Lienholder or the Agent to the
Subordinated Lienholder.
5. Application of Proceeds of Collateral. All proceeds of the
Collateral received by or for the account
of the Lienholders (wh
