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EXHIBIT 4.4(f)
First Amendment to the Revolving Credit Agreement dated as of
November 25, 1992
among Xxxxxx General Aviation Services Inc., various
banking institutions named therein and The Chase Manhattan Bank of Canada,
as successor agent,
dated as of March 15, 1995
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XXXXXX GENERAL AVIATION SERVICES INC./
SOCIETE DE SERVICES XXXXXX GENERAL (AVIATION) INC.
FIRST AMENDMENT
FIRST AMENDMENT ("Amendment"), dated as of March 15, 1995, among Xxxxxx
General Aviation Services Inc./Societe de Services Xxxxxx General (Aviation)
Inc. ("Aviation"), the banking institutions party to the Credit Agreement
referred to below (the "Banks"), and The Chase Manhattan Bank of Canada as
successor agent for itself and the Banks (the "Agent"). The parties hereto
hereby agree as follows:
1. REFERENCE TO CREDIT AGREEMENT. Reference is made to (a) the
Revolving Credit Agreement, dated as of November 25, 1992 (the "Credit
Agreement"), among Xxxxxx General Aviation Services Inc./Societe de Services
Xxxxxx General (Aviation) Inc., the banking institutions named therein and Bank
of Boston Canada as agent for itself and the other banking institutions and (b)
the Resignation and Appointment Agreement, dated as of May 1, 1995, whereby
Bank of Boston Canada resigns as agent and The Chase Manhattan Bank of Canada
is appointed as agent for itself and the other banking institutions under the
Credit Agreement and the other Loan Documents. Capitalized terms which are
used herein without definition and which are defined in the Credit Agreement
shall have the same meanings herein as therein.
2. AMENDMENT OF CREDIT AGREEMENT. The Credit Agreement is hereby
amended as follows:
(a) Section 2.1(a) of the Credit Agreement is hereby amended by
deleting "1%" where it appears in the first line thereof and substituting
therefor "1/2%".
(b) Section 2.1(b) of the Credit Agreement is hereby amended by
deleting "1-3/4%" where it appears in the first line thereof and substituting
therefor "1-5/8%".
(c) Section 7.1 of the Credit Agreement is hereby amended by deleting
"Bank of Boston Canada" where it appears in the fifth and sixth lines thereof
and substituting therefor "The Chase Manhattan Bank of Canada".
(d) Section 7.7 of the Credit Agreement is hereby amended by deleting
"Bank of Boston" where such phrase appears in the first and sixth lines thereof
and substituting therefor, "the Agent".
(e) Section 7 of the Credit Agreement is hereby amended by adding the
following new section after Section 7.14 thereof.
7.15 Agent's Fee. Aviation shall pay to the Agent annually in
advance, for the Agent's own account, on May 1, 1995 and on each
anniversary of the Funding Date to occur after such date during the term of
this Agreement, an Agent's fee in the amount of $10,000.
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(f) Section 10.11 of the Credit Agreement is hereby amended by
deleting the phrase "assign to one or more banks or other financial
institutions having total capital and surplus of $100,000,000 or more" where
such phrase appears in the second and third lines thereof, and substituting
therefor the phrase "assign to one or more Banks or to one or more banks or
other financial institutions having total capital and surplus (including the
capital and surplus of such entity's parent) of $100,000,000 or more".
(g) The definition of "Commitment Percentage" set forth in Exhibit A
to the Credit Agreement is hereby amended by deleting such definition in its
entirety, and substituting therefor the following:
Commitment Percentage - With respect to each Bank, the
percentage set forth opposite its name below as such Bank's
percentage of the aggregate Commitments of all of the Banks
(subject to adjustments permitted by the terms of the Agreement):
Commitment
Bank Percentage
---- ----------
Chase Canada 80.2469136%
ABN Canada 19.7530864%
Total 100%
(h) The definition of "Initial Revolving Period" set forth in
Exhibit A to the Credit Agreement is hereby amended by deleting "December 31,
1994" where it appears therein and substituting therefor "December 31, 1996".
(i) The definition of "Prime Rate" set forth in Exhibit A to the
Credit Agreement is hereby amended by deleting such definition in its entirety,
and substituting therefor the following:
Prime Rate - At any time shall mean the higher of (a) the rate
which is 1% in excess of the Canadian Bankers Acceptance Reference Rate (as
determined by the Agent) in effect at such time and (b) the annual rate of
interest which the Agent announces from time to time as its "prime rate"
for commercial loans made in Canada in Canadian dollars.
(j) The definition of "Reduction Commencement Date" set forth in
Exhibit A to the Credit Agreement is hereby amended by deleting "December 31,
1994" where it appears therein and substituting therefor "December 31, 1996".
(k) The definition of Revolving Credit Note(s) set forth in
Exhibit A to the Credit Agreement is hereby amended by deleting such definition
in its entirety, and substituting therefor the following:
Revolving Credit Note(s) - The revolving credit note(s)
described in Section 1.2 of the Credit Agreement, and any replacement
of any such note, including, without limitation, the Restated
Revolving Credit Note dated March 15, 1993 and restated May 1, 1995
and executed and delivered by Aviation in favor of Chase Canada.
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3. REGARDING REVOLVING CREDIT NOTES AND THE REVOLVING CREDIT LOAN
MATURITY DATE. Aviation hereby authorizes each Bank to change the Revolving
Credit Loan Maturity Date set forth in such Bank's existing Revolving Credit
Note to December 31, 2000. In accordance with Paragraph 1.4(b) of the Credit
Agreement, Aviation hereby represents and warrants to the Banks that each of
the conditions precedent to the making of a Loan set forth in Paragraph 4 of
the Credit Agreement (except for any conditions specifically relating only to
the Funding Date) has been satisfied as of the date hereof. Each of the Banks
hereby agrees to deliver to Aviation a copy of such Bank's existing Revolving
Credit Note as modified as set forth herein.
4. REPRESENTATIONS AND WARRANTIES. In order to induce the Banks
to enter into this Amendment, Aviation represents and warrants to the Banks
that (a) this Amendment and the Credit Agreement as amended hereby (the
"Amended Credit Agreement") are its legal, valid and binding obligations,
enforceable against Aviation in accordance with their terms, (b) this Amendment
and the Amended Credit Agreement do not conflict with any charter document,
agreement, instrument or undertaking binding upon Aviation or any of its
properties, and (c) no Default, or situation which with the giving of notice or
the passage of time or both would become a Default, now exists or will exist
after giving effect to this Amendment.
5. CONDITIONS PRECEDENT. This Amendment shall become effective
as of the date hereof upon satisfaction of each of the conditions precedent set
forth in this Section 5:
(a) Delivery. Aviation, the Banks, the Agent and the Guarantors
shall have executed and delivered this Amendment.
(b) Amendment to U.S. Loan Agreement. An amendment to the U.S.
Loan Agreement which is satisfactory to the Banks and the Agent in all respects
shall have been executed and delivered by each of Xxxxxx General and the
lenders which are parties to the U.S. Loan Agreement, such amendment shall
extend the Initial Revolving Period under and as defined in the U.S. Loan
Agreement to December 31, 1996, and such amendment shall be in full force and
effect.
(c) Corporate Standing and Action. Each of the Banks shall have
received (i) a Certificate of Compliance from Industry Canada as to the good
standing of Aviation as of a recent date, and (ii) a certificate of an
Authorized Officer of Aviation, dated the date hereof, certifying (A) that
attached thereto is a true and complete copy of the Articles of Amalgamation,
all Shareholder Agreements and the bylaws of Aviation, each as amended to
the date hereof or that the Articles of Amalgamation, Shareholder Agreements
and bylaws of Aviation have not been modified, amended or supplemented since
the Funding Date, (B) that attached thereto is a true and complete copy of
resolutions of the Sole Director of Aviation authorizing the execution and
delivery of this Amendment, which resolutions are in full force and effect
without modification on the date hereof, and (C) the incumbency and
signatures of the officers of Aviation or that there have been no changes in
such incumbency and signatures since the Funding Date.
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(d) Opinions of Counsel. Each of the Banks and the Agent shall
have received a favorable legal opinion addressed to the Banks and the Agent,
dated as of the date hereof, in form and substance satisfactory to the Banks
and the Agent, from each of Xxxx Xxxxxxxxx, Secretary and counsel to Aviation,
and Fraser & Xxxxxx, Ontario legal counsel to Aviation.
(e) Assignment. Bank of Boston shall have assigned all of the
Revolving Credit Loans owing to it and the Revolving Credit Note held by it to
Chase Canada in accordance with Section 10.11 of the Credit Agreement as
amended hereby.
(f) Resignation of Agent. Bank of Boston shall have resigned as
Agent under the Credit Agreement and each of the Security Documents and Chase
Canada shall have been appointed as the successor Agent under the Credit
Agreement and each of the other Loan Documents, in each case in accordance with
Section 7.6 of the Credit Agreement and pursuant to documentation which is
satisfactory to the Banks in all respects. Bank of Boston, Chase Canada,
Aviation and each of the Guarantors shall have executed and delivered all such
documents and instruments, including, without limitation, amendments to the
Security Documents, as are necessary to give effect to the above described
resignation and appointment, and all such documents and instruments shall be in
full force and effect and satisfactory to the Banks in all respects.
(g) Proceedings and Documents. All proceedings in connection with
the transactions contemplated by this Amendment and all documents incident
hereto shall be satisfactory in form and substance to the Agent, and the Agent
shall have received all information and such counterpart originals or certified
or other copies of such documents as the Agent may reasonably request.
6. MISCELLANEOUS. The Amended Credit Agreement and all of the Loan
Documents including, without limitation, the Assignment, Postponement and
Subordination and Intercreditor Agreement, are each confirmed as being in full
force and effect. This Amendment, the Amended Credit Agreement and the other
Loan Documents constitute the entire understanding of the parties with respect
to the subject matter hereof and thereof and supersede all prior understandings
and agreements, whether written or oral. This Amendment and the Credit
Agreement shall be read and construed as one agreement, and, except as
expressly amended hereby, the Credit Agreement remains unchanged. The headings
in this Amendment are for convenience of reference only and shall not alter,
limit or otherwise affect the meaning hereof. This Amendment is a Loan
Document as defined in the Amended Credit Agreement and may be executed in any
number of counterparts, which together shall constitute one instrument, and
shall bind and inure to the benefit of the parties and their respective
successors and permitted assigns. Aviation shall pay all costs and expenses,
including reasonable legal fees and disbursements of the Agent's counsel,
incurred by the Agent in preparing this Amendment (but not the legal fees and
disbursements of Agent's counsel incurred in preparation of the assignment and
purchase documents executed in connection with the assignment described in
Section 5(e) hereof or in the preparation of the resignation and appointment
documents and the amendments to the Security Documents referred to in Section
5(f) hereof). THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS (OTHER THAN THE CONFLICT OF LAWS RULES) OF THE PROVINCE OF
ONTARIO AND LAWS OF CANADA APPLICABLE THEREIN.
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IN WITNESS WHEREOF, each of the undersigned has executed this
Amendment under seal by a duly authorized officer as of the date first set
forth above.
XXXXXX GENERAL AVIATION
SERVICES INC./SOCIETE DE SERVICES
XXXXXX GENERAL (AVIATION) INC.
By:______________________________
Title:
THE CHASE MANHATTAN BANK
OF CANADA, FOR ITSELF AND AS AGENT
By:______________________________
Title:
ABN AMRO BANK CANADA
By:______________________________
Title:
The foregoing amendment is acknowledged and agreed to by the following
Guarantors:
XXXXXX GENERAL CORPORATION
By:______________________________
Title:
XXXXXX AVIATION SERVICES, INC.
CALIFORNIA
By:_______________________________
Title:
XXXXXX AVIATION SERVICES, INC.
DELAWARE
By: _______________________________
Title:
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XXXXXX GENERAL COACH LINES,
INC.
By: _______________________________
Title:
XXXXXX AVIATION SERVICES, INC.
By: _______________________________
Title
XXXXXX AVIATION SERVICES - OAKLAND, INC.
By: _______________________________
Title:
Consented to:
THE FIRST NATIONAL
BANK OF BOSTON
By:__________________________
Title:
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