SECOND AMENDMENT TO REVOLVING CREDIT AGREEMENT
EXHIBIT
10.54
Execution
Version
SECOND AMENDMENT
TO
THIS SECOND AMENDMENT TO REVOLVING
CREDIT AGREEMENT (this “Amendment”),
is made and entered into as of November 6, 2007, by and among
XXXXXXX GROUP INC., a Delaware corporation (the “Borrower”), the
several banks and other financial institutions and lenders from time to time
party hereto (the “Lenders”), SUNTRUST
BANK, in its capacity as administrative agent for the Lenders (the “Administrative
Agent”), as issuing bank (the “Issuing Bank”) and as
swingline lender (the “Swingline Lender”)
JPMORGAN CHASE BANK, NATIONAL ASSOCIATION as Syndication Agent, and XXXXX FARGO
BANK, NATIONAL ASSOCIATION, as Documentation Agent (the “Documentation
Agent”).
W I T N E S S E T
H:
WHEREAS,
the Borrower, the Lenders and the Administrative Agent are parties to a certain
Revolving Credit Agreement, dated as of August 3, 2006 (as amended, restated,
supplemented or otherwise modified from time to time, the “Credit
Agreement”; capitalized terms used herein and not otherwise defined shall
have the meanings assigned to such terms in the Credit Agreement), pursuant to
which the Lenders have made certain financial accommodations available to the
Borrower; and
WHEREAS,
the Borrower has requested that the Lenders and the Administrative Agent amend
certain provisions of the Credit Agreement, and subject to the terms and
conditions hereof, the Lenders are willing to do so;
NOW,
THEREFORE, for good and valuable consideration, the sufficiency and receipt of
all of which are acknowledged, the Borrower, the Lenders and the Administrative
Agent agree as follows:
1. Amendments.
Section
7.1(f) of the Credit Agreement is hereby amended by replacing “$325,000,000”
with “$375,000,000”.
2. Conditions
to Effectiveness of this Amendment. Notwithstanding any other
provision of this Amendment and without affecting in any manner the rights of
the Lenders hereunder, it is understood and agreed that this Amendment shall not
become effective, and the Borrower shall have no rights under this Amendment,
until the Administrative Agent shall have received (i) reimbursement or
payment of its costs and expenses incurred in connection with this Amendment or
the Credit Agreement (including reasonable fees, charges and disbursements of
King & Spalding LLP, counsel to the Administrative Agent), and
(ii) executed counterparts to this Amendment from the Borrower, each of the
Guarantors and the Lenders.
3. Representations
and Warranties. To induce the Lenders and the Administrative
Agent to enter into this Amendment, each Loan Party hereby represents and
warrants to the Lenders and the Administrative Agent:
Each Loan
Party (i) is duly organized, validly existing and in good standing as a
corporation, partnership or limited liability company under the laws of the
jurisdiction of its organization, (ii) has all requisite power and
authority to carry on its business as now conducted, and (iii) is duly
qualified to do business, and is in good standing, in each jurisdiction where
such qualification is required, except where a failure to be so qualified would
not reasonably be expected to result in a Material Adverse Effect;
The
execution, delivery and performance by each Loan Party of this Amendment
(i) are within such Loan Party’s organizational powers and have been duly
authorized by all necessary organizational, and if required, shareholder,
partner or member, action, (ii) do not require any consent or approval of,
registration or filing with, or any action by, any Governmental Authority,
except those as have been obtained or made and are in full force and effect,
(iii) will not violate any Requirements of Law applicable to Borrower or
any of its Subsidiaries or any judgment, order or ruling of any Governmental
Authority, (iv) will not violate or result in a default under any
indenture, material agreement or other material instrument binding on the
Borrower or any of its Subsidiaries or any of its assets or give rise to a right
thereunder to require any payment to be made by the Borrower or any of its
Subsidiaries and (v) will not result in the creation or imposition of any
Lien on any asset of the Borrower or any of its Subsidiaries, except Liens (if
any) created under the Loan Documents;
This
Amendment has been duly executed and delivered for the benefit of or on behalf
of each Loan Party and constitutes a legal, valid and binding obligation of each
Loan Party, enforceable against such Loan Party in accordance with its terms
except as the enforceability hereof may be limited by bankruptcy, insolvency,
reorganization, moratorium and other laws affecting creditors’ rights and
remedies in general; and
After
giving effect to this Amendment, the representations and warranties contained in
the Credit Agreement and the other Loan Documents are true and correct in all
material respects, except to the extent limited to a prior date, and no Default
or Event of Default has occurred and is continuing as of the date
hereof.
4. Reaffirmations
and Acknowledgments.
Reaffirmation of
Guaranty. Each Guarantor consents to the execution and
delivery by the Borrower of this Amendment and jointly and severally ratify and
confirm the terms of the Subsidiary Guaranty Agreement with respect to the
indebtedness now or hereafter outstanding under the Credit Agreement as amended
hereby and all promissory notes issued thereunder. Each Guarantor acknowledges
that, notwithstanding anything to the contrary contained herein or in any other
document evidencing any indebtedness of the Borrower to the Lenders or any other
obligation of the Borrower, or any actions now or hereafter taken by the Lenders
with respect to any obligation of the Borrower, the Subsidiary Guaranty
Agreement (i) is and shall continue to be a primary obligation of the
Guarantors, (ii) is and shall continue to be an absolute, unconditional,
joint and several, continuing and irrevocable guaranty of payment, and
(iii) is and shall continue to be in full force and effect in accordance
with its terms. Nothing contained herein to the contrary shall
release, discharge, modify, change or affect the original liability of the
Guarantors under the Subsidiary Guaranty Agreement.
Acknowledgment of Perfection
of Security Interest. Each Loan Party hereby acknowledges
that, as of the date hereof, the security interests and liens granted to the
Administrative Agent and the Lenders under the Credit Agreement and the other
Loan Documents are in full force and effect, are properly perfected and are
enforceable in accordance with the terms of the Credit Agreement and the other
Loan Documents.
5. Effect of
Amendment. Except as set forth expressly herein, all terms of
the Credit Agreement, as amended hereby, and the other Loan Documents shall be
and remain in full force and effect and shall constitute the legal, valid,
binding and enforceable obligations of the Borrower to the Lenders and the
Administrative Agent. The execution, delivery and effectiveness of
this Amendment shall not, except as expressly provided herein, operate as a
waiver of any right, power or remedy of the Lenders under the Credit Agreement,
nor constitute a waiver of any provision of the Credit
Agreement. This Amendment shall constitute a Loan Document for all
purposes of the Credit Agreement.
6. Governing
Law. This Amendment shall be governed by, and construed in
accordance with, the internal laws of the State of New York and all applicable
federal laws of the United States of America.
7. No
Novation. This Amendment is not intended by the parties to be,
and shall not be construed to be, a novation of the Credit Agreement or an
accord and satisfaction in regard thereto.
8. Costs and
Expenses. The Borrower agrees to pay on demand all costs and
expenses of the Administrative Agent in connection with the preparation,
execution and delivery of this Amendment, including, without limitation, the
reasonable fees and out-of-pocket expenses of outside counsel for the
Administrative Agent with respect thereto.
9. Counterparts. This
Amendment may be executed by one or more of the parties hereto in any number of
separate counterparts, each of which shall be deemed an original and all of
which, taken together, shall be deemed to constitute one and the same
instrument. Delivery of an executed counterpart of this Amendment by
facsimile transmission or by electronic mail in pdf form shall be as effective
as delivery of a manually executed counterpart hereof.
10. Binding
Nature. This Amendment shall be binding upon and inure to the
benefit of the parties hereto, their respective successors,
successors-in-titles, and assigns.
11. Entire
Understanding. This Amendment sets forth the entire
understanding of the parties with respect to the matters set forth herein, and
shall supersede any prior negotiations or agreements, whether written or oral,
with respect thereto.
[Signature Pages To
Follow]
- -
IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly
executed, under seal in the case of the Borrower and the Guarantors, by their
respective authorized officers as of the day and year first above
written.
BORROWER:
XXXXXXX
GROUP INC.
By: /s/ Xxxxxx X.
Xxx
Name: Xxxxxx X. Xxx
Title: Vice President
GUARANTORS:
AIR
LOGISTICS, L.L.C.
By: /s/ Xxxxxxx X.
Xxxxxxxx
Name: Xxxxxxx X. Xxxxxxxx
Title: Manager
AIR
LOGISTICS OF ALASKA, INC.
By: /s/ Xxxxxx X.
Xxx
Name: Xxxxxx X. Xxx
Title: Vice President
AIRLOG
INTERNATIONAL, LTD.
By: /s/ Xxxxxx X.
Xxx
Name: Xxxxxx X. Xxx
Title: Vice President
LENDERS:
SUNTRUST
BANK
as
Administrative Agent, as Issuing Bank, as Swingline Lender and as a
Lender
By /s/ Xxx
XxXxxxxx
Name: Xxx
XxXxxxxx
Title:
Director
XX
XXXXXX CHASE BANK, NATIONAL ASSOCIATION, as Syndication Agent and as a
Lender
By /s/ Xxxxxx
Xxxxxxx
Name:
Xxxxxx Xxxxxxx
Title:
Vice President
XXXXX
FARGO BANK, NATIONAL ASSOCIATION as Documentation Agent and as a
Lender
By /s/ Xxxx
Xxxxxxxxxxxxx
Name:
Xxxx Xxxxxxxxxxxxx
Title:
SVP
WHITNEY
NATIONAL BANK, as a Lender
By /s/ Xxxxxxx X.
Xxxxxxx
Name:
Xxxxxxx X. Xxxxxxx
Title:
Vice President
BANK
OF AMERICA, N.A., as a Lender
By /s/ Xxxx X.
Xxxxxx
Name:
Xxxx X. Xxxxxx
Title:
Senior Vice President
