Exhibit 10.1
THIRD MODIFICATION TO LOAN AGREEMENT
By this Third Modification to Loan Agreement ("Third Modification") made
and entered into as of the 1st day of November, 2007, by and among GLOBAL
AIRCRAFT SOLUTIONS, INC., FKA RENEGADE VENTURE CORPORATION, a Nevada
corporation, whose address is X.X. Xxx 00000, Xxxxxx, Xxxxxxx 00000-0000, WORLD
JET CORPORATION, a Nevada corporation, whose address is X.X. Xxx 00000, Xxxxxx,
Xxxxxxx 00000-0000, and XXXXXXXX AEROSPACE TECHNOLOGIES, INC., a Delaware
corporation, whose address is X.X. Xxx 00000, Xxxxxx, Xxxxxxx 00000-0000
(collectively, "Borrower"), and M&I XXXXXXXX & ILSLEY BANK, a banking
corporation organized and existing under the laws of the State of Wisconsin
("Lender"), whose address is c/o Commercial Loan Department, One East Camelback,
Phoenix, Arizona 85012, for and in consideration of the recitals and mutual
promises contained herein, confirm and agree as follows:
SECTION 1. RECITALS
1.1 Lender and Borrower have entered into that certain Loan Agreement,
dated as of the 5th day of May, 2005 (the "Initial Loan Agreement"), as amended
by that certain First Modification to Loan Agreement dated December 9, 2005
between Lender and Borrower, as further amended by that certain Second
Modification to Loan Agreement dated September 20, 2007 between Lender and
Borrower (the Initial Loan Agreement, together will all modifications, including
the modifications contained in this Third Modification, is referred to herein as
the "Loan Agreement"), and Lender and Borrower wish by this Third Modification
to amend the Loan Agreement, and certain other Loan Documents, as provided
herein.
1.2 WHEREAS, defaults under the Loan Agreement have occurred as a result of
(i) the failure of Borrower to maintain the required quick ratio of .90 to 1.0
as of March 31, 2007, June 30, 2007 and September 30, 2007, for which Borrower
maintained a quick ratio of .71 to 1.0, .69 to 1.0 and .82 to 1.0, respectively
(the "Existing Covenant Default"), (ii) the failure of Borrower to maintain the
amounts drawn under the Line of Credit to be less than the Borrowing Base for
the month ended September 30, 2007 and failure to provide a Certification and
Reconciliation of Borrowing Base for the month ended September 30, 2007
(collectively the "Existing Margin Defaults" and collectively with the Existing
Covenant Default, the "Existing Defaults").
1.3 WHEREAS, as a result of the Existing Defaults, Lender has the right to
accelerate the maturity of all of the Loans, and the right to do all of the
following: (i) foreclose on the Collateral; (ii) pursue legal action to collect
on all amounts due and owing under the Loan Documents; and (iii) pursue all
other rights and remedies available to it under the terms of the Loan Documents
or at law or equity.
1.4 WHEREAS, Borrower has requested Lender to waive the Existing Defaults,
and Lender has agreed to do so on the terms and conditions of this Third
Modification.
SECTION 2. DEFINITIONS
2.1 Capitalized Terms. The capitalized terms used in this Third
Modification shall have the meanings given to them in the Loan Agreement, unless
otherwise defined herein or unless the context dictates otherwise.
SECTION 3. MODIFICATIONS
3.1 Definition of "Note". The definition of "Note" in the Loan Agreement is
hereby amended and restated as follows:
"Note: The Amended and Restated Line of Credit Note, and any notes
executed in furtherance of any other Loan, severally and collectively."
3.2 Amount of Line of Credit. The words and figure "FIVE MILLION AND NO/100
DOLLARS ($5,000,000.00)" as they appear in Paragraphs 1.1 and 3.2 of the Loan
Agreement, and in the first paragraph of the Line of Credit Note on page one,
are deemed changed to read: "FOUR MILLION EIGHT HUNDRED SEVENTY TWO THOUSAND AND
NO/100 DOLLARS ($4,872,000.00)". The figure "$5,000,000.00" as it appears at the
top of page one of the Line of Credit Note is deemed changed to read:
"$4,872,000.00". Paragraph 3.1 of the Loan Agreement is deleted and replaced
with the following:
"3.1 Line of Credit. Subject to the conditions herein set forth,
Lender agrees to loan to or for the benefit of Borrower, and Borrower
agrees to draw upon and borrow, in the manner and upon the terms and
conditions herein expressed, amounts that shall not exceed at any time the
lesser of (i) the "Borrowing Base" or (ii) the difference between (a) FOUR
MILLION EIGHT HUNDRED SEVENTY TWO THOUSAND AND NO/100 DOLLARS
($4,872,000.00) and (b) the total amount of all Letters of Credit
Facilities outstanding or which Lender is obligated to provide (the "Line
of Credit")."
3.3 Maturity Date of Line of Credit. The date "October 31, 2007" as it
appears in Paragraph 3.7 of the Loan Agreement, and as it appears in Paragraph B
on page one of the Line of Credit Note, is deemed changed to read: "January 31,
2008".
3.4 Interest Rate on Line of Credit. The words and figure "three percent
(3.00%)" as they appear in Paragraph A on page one of the Revolving Line of
Credit note are deemed changed to read: "five percent (5.00%)".
SECTION 4. COVENANTS
Borrower covenants and agrees with Lender as follows, all to be
accomplished on or before the execution of this Third Modification unless
otherwise indicated.
4.1 No Event of Default. Other than the Existing Defaults, there shall
exist no Event of Default and no event or condition which with the lapse of time
or the giving of notice or both would result in an Event of Default.
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4.2 Credit Cards. Borrower agrees to timely pay in full each month,
commencing November 30, 2007, each of its credit cards it maintains with Lender,
and acknowledges that failure to make timely payments shall be deemed to be an
Event of Default.
4.3 Press Release. Borrower has not made and will not make any press
release or public statement regarding this Third Modification or the
transactions referred to herein, or regarding anything else and which refers to
Lender or any officer or director of Lender.
SECTION 5. ACKNOWLEDGEMENTS
5.1 Acknowledgement. Borrower hereby acknowledges and agrees that (i) the
Indebtedness is just, due and owing, without offset or reduction, (ii) the Loans
and all Loan Documents were duly authorized and executed by Borrower, and are
fully enforceable against Borrower strictly in accordance with their terms, and
(iii) the Indebtedness and the Loans and the Loan Documents have not and will
not result in any breach of or violate or constitute a default under any
mortgage, bylaws, operating agreements, deed of trust, loan or credit agreement,
articles of partnership, formation or incorporation, or other instruments to
which Borrower is a party or by which Borrower is or will be bound or affected
SECTION 6. WAIVER OF EXISTING DEFAULTS
6.1 Waiver. Borrower acknowledges that the Existing Defaults have occurred
and continue to exist. Upon the terms and conditions set forth in this Third
Modification, the Lender hereby waives (a) the Existing Covenant Default, but
only with respect to the ratios provided to Lender by Borrower for the periods
ending March 31, 2007, June 30, 2007 and September 30, 2007, and not for any
inaccuracies in the reported ratios, and (b) the Existing Margin Defaults from
the date of this Third Modification through October 31, 2007, provided that (i)
the amounts drawn under the Line of Credit that exceed the Borrowing Base do not
equal or exceed $1,500,000.00 during any of the months ending July 31, 2007,
August, 31, 2007, September 30, 2007 or October 31, 2007, and (ii) there is no
other Event of Default then existing under the Loan Documents. This waiver shall
be effective only in this specific instance and for the specific purpose for
which it is given, and this waiver shall not entitle the Borrower to any other
or further waiver in any similar or other circumstances.
SECTION 7. GENERAL
7.1 Full Force and Effect. Except as otherwise provided herein, the Initial
Loan Agreement and all other Loan Documents shall continue in full force and
effect, unaffected or modified by the terms and conditions of this Third
Modification. This Third Modification shall be attached to and deemed a part of
the Initial Loan Agreement.
7.2 Counterparts and Facsimiles. This instrument may be signed in one or
more counterparts, all of which when taken together shall constitute one and the
same instrument. Signatures transmitted by facsimile shall bind the parties
signing.
7.3 Costs and Fees. Borrower will upon the execution of this Third
Modification pay to Lender (i) all costs, fees and expenses (including without
limitation attorneys' fees) incurred by Lender in connection with this Third
Modification, and (ii) a non-refundable and fully earned extension fee in the
amount of $50,000.00.
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7.4 Ratification. All Loan Documents previously executed by Borrower, or
purported to be executed in the name of Borrower, are hereby authorized,
ratified and adopted by Borrower.
7.5 Representations and Warranties. Borrower represents and warrants to
Lender as follows, except as otherwise specifically set forth in this Third
Modification: (i) the statements contained in the Recitals are true and correct;
and the statements, representations and warranties of Borrower contained herein
and in the other Loan Documents and all information supplied or to be supplied
by Borrower was and will be true and correct as of the date hereof and as of the
date supplied; (ii) the consummation of this Third Modification and the
performance of the obligations hereunder and under the other Loan Documents have
been authorized by all necessary parties, persons and entities and have not and
will not result in any breach of, or violate or constitute a default under, any
mortgage, deed of trust, loan or credit agreement, articles of partnership,
formation or incorporation, trust agreements, bylaws, operating agreements,
partnership agreements or other instruments to which any of the parties hereto
is a party or by which any of the parties hereto may be bound or affected; and
(iii) Borrower has the right to grant and assign to Lender all rights, title and
interest herein contemplated.
7.6 Entire Agreement. This Third Modification and the other Loan Documents
contain the entire agreement between the parties with respect to the
transactions referenced herein and therein and supersede all previous written or
oral negotiations, commitments and writings.
7.7 Additional Documents. Borrower agrees to (i) execute such additional
and further documents as Lender shall require to carry out the intent of the
parties contained herein or in any other Loan Document, and/or to maintain,
preserve or perfect any security interest or lien of Lender in any item of
Collateral, and (ii) provide such corporate and other non-individual
certificates as Lender shall require to evidence authority to execute this Third
Modification and all other Loan Documents.
7.8 Release. Borrower hereby fully, finally, absolutely, and forever
releases and discharges Lender and its present and former directors,
shareholders, officers, employees, agents, representatives, attorneys,
successors, assigns, and affiliates, and their separate and respective heirs,
personal representatives, attorneys, successors, assigns, and affiliates, from
any and all actions, causes of action, claims, debts, damages, demands,
liabilities, obligations, and suits of customer, of whatever kind or nature, in
law or equity, whether now known or unknown to Borrower, and whether contingent
or matured: (a) in respect of the Loan Documents, or the actions or omissions of
Lender in respect of the Loan Documents; and (b) arising from events occurring
prior to the date of this Third Modification. The foregoing release and
discharge shall be deemed renewed, automatically and without further action of
customer, as of the date of each Advance of loan proceeds under the Line of
Credit.
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7.9 Miscellaneous. Borrower further agrees as follows:
(a) In the event any provision of this Third Modification shall
be held invalid or unenforceable by any court of competent
jurisdiction, such holding shall not affect the validity or
enforceability of any other provision hereof.
(b) This Third Modification shall be binding upon and shall inure
to the benefit of the parties hereto and their respective heirs,
personal representatives, successors and assigns, provided that
Borrower may not voluntarily assign any right or interest hereunder.
(c) Each of the representations, warranties and covenants
described in this Third Modification shall survive the execution of
this Third Modification and shall continue until the Loans are paid in
full.
(d) This Third Modification shall be governed by the laws of the
State of Arizona.
(e) Whenever used the singular number shall include and be
applicable to the plural, and the plural the singular, and the use of
any gender shall include and be applicable to all genders.
(f) Time is of the essence hereunder.
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DATED as of the day and year written above.
GLOBAL AIRCRAFT SOLUTIONS, INC.,
FKA RENEGADE VENTURE CORPORATION,
a Nevada corporation
By:______________________________
Name:____________________________
Title:___________________________
WORLD JET CORPORATION, a Nevada
corporation
By:______________________________
Name:____________________________
Title:___________________________
XXXXXXXX AEROSPACE TECHNOLOGIES,
INC., a Delaware corporation
By:______________________________
Name:____________________________
Title:___________________________
BORROWER
M&I XXXXXXXX & ILSLEY BANK, a
banking corporation organized and
existing under the laws of the
State of Wisconsin
By:______________________________
Name:____________________________
Title:___________________________
By:______________________________
Name:____________________________
Title:___________________________
LENDER
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