WAIVER AND AMENDMENT NUMBER THREE TO LOAN AGREEMENT
Execution
Version
WAIVER
AND AMENDMENT NUMBER THREE
This
WAIVER AND AMENDMENT NUMBER THREE TO LOAN AGREEMENT (this “Agreement”),
dated
as of November 30, 2007, among ATLANTIC AVIATION FBO INC., a Delaware
corporation (the “Borrower”);
the
several banks and other financial institutions signatories hereto (the
“Lender
Parties”);
and
DEPFA BANK plc, as Administrative Agent (in such capacity, the “Administrative
Agent”).
RECITALS
A. The
parties hereto are parties to the Loan Agreement dated as of September 27,
2007
by and among the Borrower, the several banks and other financial institutions
from time to time parties thereto as lenders (the “Lenders”),
issuing bank or hedging banks and the Administrative Agent (as amended, the
“Loan
Agreement”),
pursuant to which the Lenders have agreed to provide certain loans to the
Borrower for the purposes and upon the terms and conditions set forth
therein.
B. The
Borrower contemplates the acquisition, pursuant to that certain Membership
Purchase Agreement dated as of November __, 2007, by and among the Borrower
and
the sellers named therein (the “Rifle
Air Purchase Agreement”),
of
100% of the Equity Securities of Rifle Air, LLC, a Colorado limited liability
company (“Rifle
Air”),
which
in turn owns 100% of the Equity Securities of Rifle Air Jet Center, LLC, a
Colorado limited liability company, and Rifle Air Jet Center Maintenance, LLC,
a
Colorado limited liability company, all of which entities own and operate a
Fixed Based Operations business at Garfield County Regional Airport in Rifle,
Colorado (the “Rifle
Air Acquisition”).
C. The
Borrower has requested that the Required Lenders (a) approve an amendment to
Section 7.1 of the Loan Agreement to permit certain indebtedness related to
the
Rifle Air Acquisition, (b) waive the provisions of Section 7.4 to permit the
Rifle Air Acquisition, and (c) approve certain supplements to the Schedules
to
the Loan Agreement.
D.
The
Lender Parties are willing to provide the requested approvals and waiver, all
subject to and upon the terms as set forth herein.
NOW
THEREFORE, the parties hereto hereby agree as follows:
Section
1. Definitions
and Rules of Interpretation.
All
capitalized terms used but not defined in this Agreement shall have the
respective meanings specified in the Loan Agreement. The rules of interpretation
set forth in Appendix A to the Loan Agreement shall apply to this Agreement,
mutatis
mutandis,
as if
set forth herein.
Section
2. Amendment
to Loan Agreement.
The
Loan Agreement is hereby amended as follows:
(a)
Section
7.1 (Indebtedness and Guarantee Obligations).
(i) The
following new clause shall be inserted as new clause (g) immediately following
the currently existing clause (f) of Section 7.1 of the Loan
Agreement:
“(g)
Indebtedness of up to $700,000.00 incurred in connection with the acquisition
by
the Borrower of all of the Equity Securities of Rifle Air, LLC pursuant to
that
certain Membership Purchase Agreement dated November 30, 2007, by and among
the
Borrower and the sellers named therein, the principal amount of which
Indebtedness shall be included in the calculation of the cap set forth in the
proviso to the preceding clause (f).”
(ii)
Currently existing clause (g) of Section 7.1 of the Loan Agreement shall be
renumbered as clause (h).
(b)
Appendix
A (Definitions and Rules of Interpretation).
(i) The
definition of “Loan Documents” is hereby amended by inserting the words “the
Investor Contribution Agreement, ” immediately after the words “each Letter of
Credit, “ in the third line thereof.
(ii) The
following definition is hereby inserted immediately following the definition
of
“Investor”:
“Investor
Contribution Agreement”
means
the letter agreement by the Investor and acknowledged by the Borrower and the
Administrative Agent dated as of November 30, 2007.”
Section
3. Waiver
Relating to Rifle Air Acquisition.
The
Lender Parties hereby waive any non-compliance with Section 7.4 of the Loan
Agreement resulting from the Borrower’s consummation of the Rifle Air Purchase
Agreement.
Section
4. Approval
of Amendments to Schedules.
The
Lender Parties hereby approve the supplements to the Schedules to the Loan
Agreement set forth in Attachment 1 hereto.
Section
5. No
Further Waiver
or Amendment.
Except
to the extent that provisions of the Loan Agreement or its Schedules are
amended, waived or supplemented as expressly set forth in Sections 2,3 and
4
hereof, the execution and delivery hereof shall
not
(a) operate as a modification or waiver of any right,
power or
remedy of the Financing Parties or the Collateral Agent under any of the Loan
Documents, (b) cause a novation with respect to any of the Loan Documents,
or (c) extinguish or terminate any obligations of the
Borrower
under the Loan Documents.
Section
6. Effectiveness.
This
Agreement shall become effective on the first date on which the Administrative
Agent shall have received all of the following:
(a)
Duly
executed counterparts of this Agreement (which may be by telecopy) from each
of
the Borrower and the Required Lenders and an acknowledgement thereof duly
executed by the Administrative Agent;
(b)
The
Investor Contribution Agreement in the form of Exhibit A hereto, duly executed
by the Investor and acknowledged by each of the Borrower and the Administrative
Agent; and
-2-
(c)
Evidence reasonably satisfactory to the Administrative Agent that (i) the
purchase price (as such term is defined in the Rifle Air Purchase Agreement)
has
been paid in accordance with the Rifle Air Purchase Agreement, other than any
adjustment thereto in accordance with the Rifle Air Purchase Agreement that
is
not yet due and payable; (ii) all existing Indebtedness of Rifle Air and
its Subsidiaries has been paid off, except for any Indebtedness which, after
giving effect to this Agreement, will constitute Permitted Indebtedness; and
(iii) The Flight Department, LLC, shall no longer be an Affiliate of Rifle
Air or any of its Subsidiaries.
Section
7. Governing
Law.
THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAW OF THE STATE OF
NEW YORK.
Section
8. Severability.
If any
provision of this Agreement is held to be illegal, invalid or unenforceable,
the
legality, validity and enforceability of the remaining provisions of this
Agreement shall not be affected or impaired thereby. The invalidity of a
provision in a particular jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
Section
9. Headings.
The
headings in this Agreement have been included herein for convenience of
reference only, are not part of this Agreement, and shall not be taken into
consideration in interpreting this Agreement.
Section
10. Entire
Agreement.
This
Agreement comprises the complete and integrated agreement of the parties hereto
on the subject matter hereof and supersedes all prior agreements, written or
oral, on such subject matter.
Section
11. Counterparts.
This
Agreement 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 copies of this
Agreement signed by all the parties shall be maintained by the Borrower and
the
Administrative Agent.
[Signature
pages follow.]
-3-
N
WITNESS WHEREOF,
the
parties hereto have caused this Agreement to be duly executed by their
respective officers thereunto duly authorized as of the day and year first
above
written.
ATLANTIC
AVIATION FBO INC.
|
|
By:
|
/s/
Xxxxx X. Xxxxxx
|
Name: Xxxxx X. Xxxxxx | |
Title: Chief
Executive Officer
|
AMENDMENT
NO. 3 TO ATLANTIC AVIATION LOAN AGREEMENT
Acknowledged
by:
|
|
DEPFA
BANK plc, as Administrative Agent
|
|
By:
|
/s/
Xxxxx Xxxx
|
Name: Xxxxx Xxxx | |
Title: Director
|
|
By:
|
/s/
Xxxx XxXxxxxx
|
Name: Xxxx XxXxxxxx | |
Title: Managing
Director
|
AMENDMENT
NO. 3 TO ATLANTIC AVIATION LOAN AGREEMENT
DEPFA
BANK plc, as Term Loan Lender
|
|
By: |
/s/
Xxxxx Xxxx
|
Name: Xxxxx Xxxx | |
Title: Director
|
|
By:
|
/s/
Xxxx XxXxxxxx
|
Name: Xxxx XxXxxxxx | |
Title: Managing
Director
|
AMENDMENT
NO. 3 TO ATLANTIC AVIATION LOAN AGREEMENT
THE
GOVERNOR AND COMPANY
OF
THE BANK OF IRELAND,
as
Term Loan Lender
|
||
By: |
/s/
Xxxxx St. Xxxx [Illegible]
|
|
Name: Xxxxx St. Xxxx [Illegible] | ||
Title: Director
|
||
By:
|
/s/
Xxxxxxx Xxxxxx
|
|
Name: Xxxxxxx Xxxxxx | ||
Title: Manager
|
AMENDMENT
NO. 3 TO ATLANTIC AVIATION LOAN AGREEMENT
DEKA
BANK
DEUTSCHE
GIROZENTRALE,
as
Term Loan Lender
|
|
By:
|
/s/
Xxxxxx Xxxxxxxxxx
|
Name: Xxxxxx Xxxxxxxxxx | |
Title: Vice
President
|
|
By:
|
/s/
Xxxxx Xxxx
|
Name: Xxxxx Xxxx | |
Title: Executive
Director
|
AMENDMENT
NO. 3 TO ATLANTIC AVIATION LOAN AGREEMENT
WESTLB
AG, NEW YORK BRANCH
as
Term Loan Lender
|
|
By:
|
/s/
Xxxxx Xxxxxxxxxx
|
Name: Xxxxx Xxxxxxxxxx | |
Title: Director
|
|
By:
|
/s/
Xxxx Xxxx
|
Name: Xxxx Xxxx | |
Title: Associate
Director
|
AMENDMENT
NO. 3 TO ATLANTIC AVIATION LOAN AGREEMENT
DEPFA
BANK plc, as Capex Loan Lender
|
|
By:
|
/s/
Xxxxx Xxxx
|
Name: Xxxxx Xxxx | |
Title: Director
|
|
By:
|
/s/
Xxxx XxXxxxxx
|
Name: Xxxx XxXxxxxx | |
Title: Managing
Director
|
AMENDMENT
NO. 3 TO ATLANTIC AVIATION LOAN AGREEMENT
THE
GOVERNOR AND COMPANY
OF
THE BANK OF IRELAND,
as
Capex Loan Lender
|
|
By:
|
/s/
Xxxxx St. Xxxx [Illegible]
|
Name: Xxxxx St. Xxxx [Illegible] | |
Title: Director
|
|
By:
|
/s/
Xxxxxxx Roucke
|
Name: Xxxxxxx Roucke | |
Title: Manager
|
AMENDMENT
NO. 3 TO ATLANTIC AVIATION LOAN AGREEMENT
DEKA
BANK
DEUTSCHE
GIROZENTRALE,
as
Capex Loan Lender
|
|
By:
|
/s/
Xxxxxx Xxxxxxxxxx
|
Name: Xxxxxx Xxxxxxxxxx | |
Title: Vice
President
|
|
By:
|
/s/
Xxxxx Xxxx
|
By:
|
/s/
Xxxxxx Xxxxxxxxxx
|
AMENDMENT
NO. 3 TO ATLANTIC AVIATION LOAN AGREEMENT
DEPFA
BANK plc,
as
Revolving Loan Lender and Issuing Bank
|
|
By:
|
/s/
Xxxxx Xxxx
|
Name: Xxxxx Xxxx | |
Title: Director
|
|
By:
|
/s/
Xxxx XxXxxxxx
|
Name: Xxxx XxXxxxxx | |
Title: Managing
Director
|
AMENDMENT
NO. 3 TO ATLANTIC AVIATION LOAN AGREEMENT
ATTACHMENT
1
SUPPLEMENTAL
DISCLOSURE SCHEDULES
(See
attached)
AMENDMENT
NO. 3 TO ATLANTIC AVIATION LOAN AGREEMENT
EXHIBIT
A
FORM
OF INVESTOR CONTRIBUTION AGREEMENT
(See
attached)
Exh.
A -
1
MACQUARIE
FBO HOLDINGS LLC
November
[__], 2007
DEPFA
BANK plc,
as
Administrative Agent
0
Xxxxxxx
Xxxxxx
Xxxxxx
0
Xxxxxxx
Attention:
Xxxxx Xxxxx
Atlantic
Aviation FBO Inc.
0000
Xxxxxxxxxxxxx Xxxxxxx, Xxxxx 0000
Xxxxx,
Xxxxx 00000
Attention:
Xxxxxx Xxxxxx
Dear
Sir
or Madam,
RE:
Investor Contribution Agreement
We
refer
to (i) the Loan Agreement dated as of September 27, 2007 by and among
Atlantic Aviation FBO Inc. (the “Borrower”),
the
several banks and other financial institutions from time to time parties thereto
as lenders (the “Lenders”),
issuing bank or hedging banks, and DEPFA BANK plc as administrative agent (in
that capacity, the “Administrative
Agent”)
(as
amended, the “Loan
Agreement”),
(ii) the Membership Purchase Agreement dated as of November [__], 2007 by
and among the sellers named therein (the “Rifle
Sellers”)
and
the Borrower, as buyer (the “MPA”),
and
(iii) Amendment Number Three to Loan Agreement, dated as of the date
hereof, by and among the Borrower, the Lenders party thereto and the
Administrative Agent (“Amendment
No. 3”).
All
capitalized terms used but not otherwise defined herein shall have the meanings
set forth in Appendix A to the Loan Agreement, and the rules of interpretation
set forth in Appendix A to the Loan Agreement shall apply to this letter
agreement. We hereby acknowledge that it is a condition precedent to the
effectiveness of Amendment No. 3 that the Investor, the Borrower and the
Administrative Agent shall have executed and delivered this letter
agreement.
1. Equity
Contribution.
The
Investor hereby covenants to the Borrower and the Administrative Agent as
follows:
(a) Promptly,
but in any event within five (5) Business Days, after receiving notice from
the
Borrower or the Administrative Agent that the Borrower is required to make
any
payments to the Rifle Sellers pursuant to the MPA, including pursuant to
Sections 2.3 (Working Capital Adjustments) or 12.2 (Indemnification by Buyer)
thereof, or pursuant to the promissory note issued pursuant to Section
2.2(a)(ii) thereof, the Investor shall make additional equity contributions
to
the Borrower in an amount equal to any such required payments.;
Exh.
A -
2
(b) The
Investor shall pay all reasonable out-of-pocket expenses incurred by the
Administrative Agent or the Borrower, including the fees, charges and
disbursements of any counsel for the Administrative Agent or the Borrower,
in
connection with the enforcement, attempted enforcement or protection of their
respective rights in connection with this letter agreement or any other Loan
Document.
2. Enforcement.
The
Investor acknowledges and agrees that this letter agreement is entered into
for
the benefit of the Borrower and the Administrative Agent, acting on behalf
of
the Financing Parties, and that the Administrative Agent, on behalf of the
Financing Parties, shall have the right (but not the obligation) to proceed
directly against the Investor to enforce any obligations of the Investor
hereunder.
3. Limitation
of Liability.
The
obligations of the Investor under this letter agreement are limited as set
forth
herein and shall in no way create any recourse, liability or obligation
(contingent or otherwise) to or on the part of Investor or any of its Affiliates
beyond the liabilities expressly set out in this letter agreement. No further
liability and no promise of any additional commitments are to be inferred or
implied.
4. Representations
and Warranties.
The
Investor warrants and represents to the Borrower and the Administrative Agent
as
follows:
(a) The
Investor is a duly organized, validly existing limited liability company
organized and in good standing under the laws of the State of Delaware, and
has
all requisite power and authority to conduct its business and to own its
property as now conducted or owned;
(b) The
execution, delivery and performance by the Investor of this letter agreement,
and the performance of its obligations hereunder, are within the Investor’s
limited liability company powers, have been duly authorized by all necessary
action, and do not (i) contravene the Investor’s organizational documents, (ii)
violate any Governmental Rule, or (iii) conflict with or result in the breach
of, or constitute a default under, any contract, loan agreement, indenture,
mortgage, deed of trust, lease or other instrument binding on or affecting
the
Investor or any of its property or assets; and
(c) This
letter agreement has been duly executed and delivered by a duly authorized
representative of the Investor and constitutes a legal, valid and binding
obligation of the Investor, enforceable against it in accordance with its terms,
subject to applicable bankruptcy, insolvency, and similar laws affecting the
enforcement of creditors’ rights generally and general principles of equity.
5. Notices.
All
notices and other communications provided for herein shall be in writing and
shall be delivered by hand or overnight courier service, mailed by certified
or
registered mail or sent by telecopy, with a copy to each party hereto, as
follows:
(a)
|
if
to the Borrower:
|
Atlantic
Aviation FBO Inc.
|
|
0000
Xxxxxxxxxxxxx Xxxxxxx, Xxxxx 0000
|
|
Xxxxx,
XX 00000
|
|
Attention:
Xxxxxx Xxxxxx
|
|
Telephone:
(000) 000-0000
|
|
|
Facsimile:
(000) 000-0000
|
Exh.
A -
3
with
a copy to:
|
|
Macquarie
Infrastructure Company Inc.
|
|
000
Xxxx 00xx Xxxxxx
|
|
Xxx
Xxxx, Xxx Xxxx 00000
|
|
Attention:
Xxxxx Xxxxx
|
|
Telephone:
(000) 000-0000
|
|
Facsimile:
(000) 000-0000
|
|
and
|
|
Pillsbury
Xxxxxxxx Xxxx Xxxxxxx LLP
|
|
0000
Xxxxxx Xxxxxxxxx
|
|
XxXxxx,
Xxxxxxxx 00000
|
|
Attention:
Xxxxx X. Xxxxxx, Esq.
|
|
Telephone:
(000) 000-0000
|
|
Facsimile:
(000) 000-0000
|
|
(b)
|
if
to the Administrative Agent:
|
DEPFA
BANK plc
|
|
0
Xxxxxxx Xxxxxx
|
|
Xxxxxx
0
|
|
Xxxxxxx
|
|
Attention:
Xxxxx Xxxxx
|
|
Telephone:
x000 0 000 0000
|
|
Facsimile:
x000 0 000 0000
|
|
(c)
|
If
to the Investor:
|
Macquarie
FBO Holdings LLC
|
|
c/o
Macquarie Infrastructure Company Inc.
|
|
000
Xxxx 00xx Xxxxxx
|
|
Xxx
Xxxx, Xxx Xxxx 00000
|
|
Attention:
Xxxxx Xxxxx
|
|
Telephone:
(000) 000-0000
|
|
Facsimile:
(000) 000-0000
|
Any
party
hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties. All notices and other
communications given to any party hereto in accordance with the provisions
of
this Agreement shall be deemed to have been given on the date of
receipt.
Exh.
A -
4
6. Assignment
/ Termination.
This
letter agreement shall be binding upon, and inure to the benefit of, the parties
hereto and their respective successors and assigns, provided
that
neither the Investor nor the Borrower may assign or otherwise transfer any
of
their respective rights or obligations hereunder without the prior written
consent of the Administrative Agent (and any attempted assignment or transfer
by
the Investor or the Borrower without such consent shall be null and void).
This
letter agreement shall remain in full force and effect until all Obligations
to
be paid or performed under the Loan Documents have been indefeasibly paid and
performed in full and the Commitments under the Loan Documents have been
terminated.
7. General
Provisions.
This
letter agreement may be executed in any number of counterparts, which together
shall constitute one instrument. Delivery
of an executed counterpart of a signature page of this letter agreement by
telecopy shall be effective as delivery of a manually executed counterpart
of
this letter agreement.
This
letter agreement shall be governed by, and construed in accordance with, the
law
of the State of New York.
[Signature
pages follow.]
Exh.
A -
5
Very
truly yours,
|
||
MACQUARIE
FBO HOLDINGS LLC
|
||
By:
|
MACQUARIE
INFRASTRUCTURE COMPANY INC.,
|
|
its
managing member
|
||
By:
|
||
Name:
|
||
Title:
|
INVESTOR
CONTRIBUTION AGREEMENT
(ATLANTIC -
RIFLE FBO ACQUISITION)
Acknowledged
by:
DEPFA
BANK plc
as
Administrative Agent
By:
|
||
Name:
|
||
Title:
|
By:
|
||
Name:
|
||
Title:
|
INVESTOR
CONTRIBUTION AGREEMENT
(ATLANTIC -
RIFLE FBO ACQUISITION)
Acknowledged
by:
ATLANTIC
AVIATION FBO INC.
By:
|
||
Name:
|
||
Title:
|
INVESTOR
CONTRIBUTION AGREEMENT
(ATLANTIC -
RIFLE FBO ACQUISITION)