Exhibit 4.11
WAIVER AGREEMENT
WAIVER AGREEMENT, dated as of June 26, 2002, among Mercury Air Group,
Inc., a Delaware corporation (the "Company"), X. X. Xxxxxxx Mezzanine Fund,
L.P., a Delaware limited partnership ("WMF"), and each of the corporations which
are signatories hereto listed as Guarantors (each a "Guarantor"). All
capitalized terms used herein and not otherwise defined herein shall have the
respective meanings provided such terms in the Purchase Agreement referred to
below.
W I T N E S S E T H :
- - - - - - - - - - -
WHEREAS, the Company and WMF are parties to a Securities Purchase
Agreement, dated as of September 10, 1999 (as amended, modified or supplemented
through the date hereof, the "Purchase Agreement"); and
WHEREAS, the Company has requested that WMF provide the waiver
provided for herein, and WMF has agreed to provide such waiver on the terms and
conditions set forth herein;
WHEREAS, the Guarantors are parties to the Guaranty.
NOW, THEREFORE, it is agreed:
1. Pursuant to Section 9.6 of the Purchase Agreement, the Company has
agreed that it will not dispose any of its property, subject to the exceptions
set forth in such section. The Company has advised WMF that it desires to enter
into a proposed Asset Purchase Agreement between Signature Flight Support
Corporation as Purchaser and the Company as Seller (the "Agreement"), a copy of
which has been provided to WMF, pursuant to which the Company proposes to sell
its fixed base flight operation at Xxxxxxx Field located in Bedford,
Massachusetts (the "Transaction"). Accordingly, the Transaction would be
prohibited under Sections 9.6 of the Purchase Agreement and the Company has
requested that WMF waive the covenants set forth therein to permit the Company
to consummate the Transaction. WMF hereby waives compliance with Sections 9.6 of
the Purchase Agreement and consents to the Company consummating the Transaction,
subject to the satisfaction of each of the conditions set forth below:
(a) the Transaction is consummated in accordance with the Agreement
in the form delivered to WMF, without amendment, modification or waiver of any
provision without the prior consent of WMF;
(b) the net proceeds received from the Transaction (i.e., the
purchase price less related expenses) shall be used to pay down the Term Loan
under the Senior Credit Agreement;
(c) on or prior to the consummation of the Transaction, the Company
shall have paid and WMF shall have received the full amount of Interest (as
defined in the WMF Note) due on the WMF Note through June 30, 2002;
(d) No Default or Event of Default under the Senior Credit Agreement
shall exist as of the closing, and no Default or Event of Default thereunder
shall occur by reason of the payment of interest as required under clause (c)
prior to June 30, 2002; and
(e) the delivery to WMF of original counterpart signature pages of
this Waiver Agreement, duly executed and delivered by WMF, the Company, and each
of the Guarantors.
2. For purposes of the Guaranty, by their respective signatures below,
each Guarantor hereby consents and agrees to the entering into of this Waiver
Agreement and acknowledges and affirms that the Guaranty (as amended, modified
or supplemented prior to the date hereof) remains in full force and effect in
accordance with its terms on the date hereof and after giving effect to this
Waiver Agreement.
3. This Waiver Agreement is limited as specified and shall not
constitute a modification, acceptance or waiver of any other provision of the
Purchase Agreement or any of the other Transaction Documents.
4. In order to induce WMF to enter into this Waiver Agreement, the
Company hereby represents and warrants that no default under any of the
Transaction Documents or Event of Default exists or will exist as of the date
hereof.
5. This Waiver Agreement may be executed in any number of counterparts
and by the different parties hereto on separate counterparts, each of which
counterparts when executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument. A complete set of
counterparts shall be delivered to WMF.
6. THIS WAIVER AGREEMENT AND THE RIGHTS AND OBLIGATIONS HEREUNDER SHALL
BE GOVERNED BY, CONSTRUED IN ACCORDANCE WITH, AND ENFORCED UNDER, THE LAW OF THE
STATE OF NEW YORK APPLICABLE TO AGREEMENTS OR INSTRUMENTS ENTERED INTO AND
PERFORMED ENTIRELY WITHIN SUCH STATE.
7. This Waiver Agreement shall become effective when each of the
Company, the Guarantors and WMF shall have signed a counterpart hereof (whether
the same or different counterparts) and shall have delivered (including by way
of telecopier) the same to WMF at its address listed in the Purchase Agreement.
8. The Company will pay all expenses of WMF (including fees, charges and
disbursements of counsel) in connection with this Waiver Agreement.
9. From and after the effective date of this Waiver Agreement, all
references in the Purchase Agreement and each of the other Transaction Documents
to the Purchase Agreement shall be deemed to be references to the Purchase
Agreement after giving effect to this Waiver Agreement.
[INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart
of this Waiver Agreement to be duly executed and delivered as of the date first
above written.
MERCURY AIR GROUP, INC.
(A DELAWARE CORPORATION)
By:
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Name: Xxxxxx X. Xxxxxx
Title: Chief Executive Officer
X. X. XXXXXXX MEZZANINE FUND, L.P.
By: Xxxxxxx XX, L.L.C.
Its General Partner
By:
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Name:
A Managing Director
GUARANTORS:
MERCFUEL, INC.
By:
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Name: Xxxxxx X. Xxxxxx
Title: Chief Executive Officer
MAYTAG AIRCRAFT CORPORATION
By:
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Name: Xxxxxx X. Xxxxxx
Title: Chief Executive Officer
MERCURY AIR CARGO, INC.
By:
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Name: Xxxxxx X. Xxxxxx
Title: Chief Executive Officer
AEG FINANCE CORPORATION
By:
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Name: Xxxxxx X. Xxxxxx
Title: Chief Executive Officer
MERCURY AIR CENTERS, INC.
(F/K/A XXXXXXX FLYING SERVICES, INC.)
By:
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Name: Xxxxxx X. Xxxxxx
Title: Chief Executive Officer
HERMES AVIATION, INC.
By:
--------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Chief Executive Officer
VULCAN AVIATION, INC.
By:
--------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Chief Executive Officer
JUPITER AIRLINE AUTOMATION SERVICES, INC.
(F/K/A RPA AIRLINE AUTOMATION SERVICES, INC. )
By:
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Name Xxxxxx X. Xxxxxx
Title: Chief Executive Officer
MERCURY ACCEPTANCE CORPORATION
By:
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Name: Xxxxxx X. Xxxxxx
Title: Chief Executive Officer
EXCEL CARGO, INC.
By:
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Name: Xxxxxx X. Xxxxxx
Title: Chief Executive Officer
[SIGNATURE PAGE TO WAIVER AGREEMENT]
