Exhibit 10.3
SECURITY AGREEMENT
THIS SECURITY AGREEMENT (this "Security Agreement") is entered into as
of March 30, 2006, by and among WORLD AIRWAYS, INC., a Delaware corporation
("World Airways"), NORTH AMERICAN AIRLINES, INC., a Delaware corporation ("North
American"; World Airways and North American, each a "Borrower", and
collectively, the "Borrowers"), WORLD AIR HOLDINGS, INC., a Delaware corporation
("Holdings"), WORLD AIRWAYS PARTS COMPANY, LLC, a Delaware limited liability
company ("Parts"; Holdings and Parts, each, individually, a "Guarantor" and
collectively the "Guarantors"; the Guarantors, together with the Borrowers,
each, individually, a "Credit Party", and, collectively, the "Credit Parties",
which terms shall include any Domestic Subsidiary which becomes a Credit Party
pursuant to Section 7.16 of the Credit Agreement referred to below) and WACHOVIA
BANK, NATIONAL ASSOCIATION, in its capacity as agent (in such capacity, the
"Agent") for the financial institutions from time to time party to the Credit
Agreement described below (the "Lenders").
RECITALS
WHEREAS, pursuant to that certain Credit Agreement dated as of the
date hereof (together with all modifications, renewals, extensions, supplements
and replacements from time to time, the "Credit Agreement"), among the
Borrowers, the Lenders and the Agent, the Lenders have agreed to make Loans and
to issue or participate in Letters of Credit upon the terms and subject to the
conditions set forth therein;
WHEREAS, it is a condition precedent to the effectiveness of the
Credit Agreement and the obligations of the Lenders to make their respective
Loans and to issue Letters of Credit under the Credit Agreement that the Credit
Parties shall have executed and delivered this Security Agreement to the Agent
for the benefit of the Agent and the Lenders.
NOW, THEREFORE, in consideration of these premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Definitions.
(a) Unless otherwise defined herein, capitalized terms used herein
shall have the meanings ascribed to such terms in the Credit Agreement, and
the following terms which are defined in the Uniform Commercial Code from
time to time in effect in the State of Georgia (the "UCC") are used herein
as so defined: Accessions, Accounts, As-Extracted Collateral, Certificate
of Title, Chattel Paper, Commercial Tort Claims, Commodities Intermediary,
Consumer Goods, Control, Deposit Accounts, Documents, Equipment, Farm
Products, Fixtures, General Intangibles, Goods, Instruments, Inventory,
Investment Property, Letter-of-Credit Rights, Manufactured Homes, Proceeds,
Securities Intermediary, Software, Supporting Obligations and Tangible
Chattel Paper. For purposes of this Security Agreement, the term "Lender"
shall include any Lender or any Affiliate of any Lender which has entered
into any Lender Hedging Agreement or any agreement pertaining to Bank
Products.
(b) In addition, the following terms shall have the following
meanings:
"Aircraft Lease Agreements" means the collective reference to each
lease now or hereafter in effect between any Credit Party and any other Person
providing for the lease by such Credit Party of any "aircraft" (as defined in
the FAA Act) and/or any "engine" (as defined in the FAA Act), each such lease
existing on the date hereof (and all amendments thereto) being described on
Schedule 6 hereto.
"Copyright Licenses" means any written agreement, naming any Credit
Party as licensor, granting any right under any Copyright including, without
limitation, any thereof referred to in Schedule 6.17 to the Credit Agreement.
"Copyrights" means (a) all registered United States copyrights in all
Works, now existing or hereafter created or acquired, all registrations and
recordings thereof, and all applications in connection therewith, including,
without limitation, registrations, recordings and applications in the United
States Copyright Office including, without limitation, any thereof referred to
in Schedule 6.17 to the Credit Agreement, and (b) all renewals thereof
including, without limitation, any thereof referred to in Schedule 6.17 to the
Credit Agreement.
"FAA" means the Federal Aviation Administration of the United States
of America and any successor thereto.
"Intellectual Property" means all Copyrights, Copyright Licenses,
Patents, Patent Licenses, Trademarks, Trademark Licenses and all other
intellectual property of the Credit Parties.
"Leased Aircraft" means all aircraft and aircraft engines leased by a
Credit Party pursuant to an Aircraft Lease Agreement.
"Patent License" means all agreements, whether written or oral,
providing for the grant by or to a Credit Party of any right to manufacture, use
or sell any invention covered by a Patent, including, without limitation, any
thereof referred to in Schedule 6.17 to the Credit Agreement.
"Patents" means (a) all letters patent of the United States or any
other country and all reissues and extensions thereof, including, without
limitation, any thereof referred to in Schedule 6.17 to the Credit Agreement,
and (b) all applications for letters patent of the United States or any other
country and all divisions, continuations and continuations-in-part thereof,
including, without limitation, any thereof referred to in Schedule 6.17 to the
Credit Agreement.
"Secured Obligations" means (a) all Obligations, howsoever evidenced,
created, incurred or acquired, whether primary, secondary, direct or contingent,
or joint and several and (b) all expenses and charges, legal and otherwise,
actually incurred by the Agent and/or the Lenders in collecting or enforcing any
Obligations or in realizing on or protecting any security therefor, including
without limitation the security afforded hereunder.
"Securities Account" means an account to which a financial asset is or
may be credited in accordance with an agreement under which the person
maintaining the account
undertakes to treat the person for whom the account is maintained as entitled to
exercise the rights that comprise the financial asset.
"Spare Parts" means any "spare part" (as defined in the FAA
Act)(currently defined in 49 U.S.C. Section 40102(a)(43)).
"Spare Parts Agreement" means an agreement among any Credit Party, the
Agent and the lessor under an Aircraft Lease Agreement, containing intercreditor
arrangements reasonably acceptable to the Agent including, but not limited to,
arrangements allowing the Agent to enter Leased Aircraft or other locations
owned or leased by such lessor for the purposes of taking possession of any of
such Credit Party's Spare Parts or otherwise enforcing the Agent's security
interests in such Spare Parts.
"Spare Parts Location" means the location of any Spare Part which is
identified on Schedule 4(b) as a Spare Parts Location, as amended or otherwise
supplemented from time to time by any Credit Party pursuant to the terms of this
Security Agreement.
"Trademark License" means any agreement, written or oral, providing
for the grant by or to a Credit Party of any right to use any Trademark,
including, without limitation, any thereof referred to in Schedule 6.17 to the
Credit Agreement.
"Trademarks" means (a) all trademarks, trade names, corporate names,
company names, business names, fictitious business names, trade styles, service
marks, logos and other source or business identifiers, and the goodwill
associated therewith, now existing or hereafter adopted or acquired, all
registrations and recordings thereof, and all applications in connection
therewith, whether in the United States Patent and Trademark Office or in any
similar office or agency of the United States, any State thereof or any other
country or any political subdivision thereof, or otherwise, including, without
limitation, any thereof referred to in Schedule 6.17 to the Credit Agreement,
and (b) all renewals thereof.
"Work" means any work which is subject to copyright protection
pursuant to Title 17 of the United States Code.
2. Grant of Security Interest in the Collateral. To secure the prompt
payment and performance in full when due, whether by lapse of time,
acceleration, mandatory prepayment or otherwise, of the Secured Obligations,
each Credit Party hereby grants to the Agent, for the benefit of the Agent and
the Lenders, a continuing security interest in, and a right to set off against,
any and all right, title and interest of such Credit Party in and to the
following, whether now owned or existing or owned, acquired, or arising
hereafter (collectively, the "Collateral"):
(a) all Accounts;
(b) all cash and Cash Equivalents;
(c) all Chattel Paper;
(d) those certain Commercial Tort Claims of the Credit Parties in
which a Credit Party is the claimant or plaintiff set forth on Schedule
2(d) attached hereto, if any, (as such Schedule may be updated from time to
time by the Credit Parties);
(e) all Copyrights;
(f) all Copyright Licenses;
(g) all Deposit Accounts, Collection Accounts, Cash Concentration
Accounts, Securities Accounts, and all accounts with Valley National Bank
or the United Parcel Service maintained in connection with AMC-related
contracts, or otherwise, and any replacement or successor accounts relating
thereto;
(h) all Documents;
(i) all Equipment;
(j) all Fixtures;
(k) all General Intangibles;
(l) all Goods;
(m) all Instruments;
(n) all Inventory;
(o) all Investment Property;
(p) all Letter-of-Credit Rights;
(q) to the extent assignable, all agreements, contracts, leases
(excluding Aircraft Lease Agreements and Real Estate leases or usufructs),
including, but not limited to, Aircraft Lease Agreements, licenses, tax
sharing agreements or hedging arrangements now or hereafter entered into by
a Credit Party, as such agreements may be amended or otherwise modified
from time to time (collectively, the "Assigned Agreements"), including,
without limitation, (i) all rights of a Credit Party to receive moneys due
and to become due under or pursuant to the Assigned Agreements, (ii) all
rights of a Credit Party to receive proceeds of any insurance, indemnity,
warranty or guaranty with respect to the Assigned Agreements, (iii) claims
of a Credit Party for damages arising out of or for breach of or default
under the Assigned Agreements and (iv) the right of a Credit Party to
terminate the Assigned Agreements, to perform thereunder and to compel
performance and otherwise exercise all remedies thereunder;
(r) all Patents;
(s) all Patent Licenses;
(t) all Trademarks;
(u) all Trademark Licenses;
(v) all Software;
(w) all Spare Parts whether located at a Spare Parts Location or
otherwise;
(x) all Supporting Obligations;
(y) all books, records, ledger cards, files, correspondence, computer
programs, tapes, disks, and related data processing software (in each
instance, to the extent owned by such Credit Party or in which it has an
assignable interest) that at any time evidence or contain information
relating to any Collateral or are otherwise necessary or helpful in the
collection thereof or realization thereupon;
(z) all other personal property of any kind or type whatsoever owned
by such Credit Party; and
(aa) to the extent not otherwise included, all Accessions, Proceeds
and products of any and all of the foregoing.
The Credit Parties and the Agent, for itself and on behalf of the
Lenders, hereby acknowledge and agree that the security interest created hereby
in the Collateral (i) constitutes continuing collateral security for all of the
Secured Obligations, whether now existing or hereafter arising and (ii) is not
to be construed as an assignment of any Intellectual Property. Any of the
foregoing to the contrary notwithstanding, the "Collateral" shall not include,
and the security interest granted herein shall not attach to, any asset subject
to a rule of law, statute or regulation or of an agreement or any general
intangible (including a contract, permit, license or franchise) or a Permitted
Lien, where the grant of such security interest would invalidate or constitute a
breach or violation of any such rule of law, statute, regulation, agreement or
general intangible or agreement or agreements creating or giving rise to such
Permitted Lien, provided that the limitation set forth in this sentence shall
(i) exist only for so long as such rule of law, statute, regulation, agreement
or general intangible or agreement and the Permitted Lien created therein
continue to be effective (and, upon the cessation, termination, expiration of
such rule of law, statute, regulation, agreement or general intangible or
Permitted Lien, or if any such rule of law, statute or regulation is no longer
applicable, the security interest granted herein shall be deemed to have
automatically attached to such asset) and (ii) not apply with respect to any
asset if and to the extent that the security interest in and to such asset
granted in this Security Agreement is permitted under Sections 9-406, 9-407,
9-408, or 9-409 of the UCC.
3. Provisions Relating to Accounts, Chattel Paper, Contracts and
Agreements.
(a) Anything herein to the contrary notwithstanding, each of the
Credit Parties shall remain liable under each of its Accounts, Chattel
Paper, contracts and agreements to observe and perform all the conditions
and obligations to be observed and performed by it thereunder, subject to
all waivers, notice and cure rights and rights to object contained therein.
Neither the Agent nor any Lender shall have any obligation or liability
under any Account (or any agreement giving rise thereto), Chattel Paper,
contract or agreement by reason of or arising out of this Security
Agreement or the receipt by the Agent or any
Lender of any payment relating to such Account, Chattel Paper, contract or
agreement pursuant hereto, nor shall the Agent or any Lender be obligated
in any manner to perform any of the obligations of a Credit Party under or
pursuant to any Account (or any agreement giving rise thereto), Chattel
Paper, contract or agreement, to make any payment, to make any inquiry as
to the nature or the sufficiency of any payment received by it or as to the
sufficiency of any performance by any party under any Account (or any
agreement giving rise thereto), Chattel Paper, contract or agreement, to
present or file any claim, to take any action to enforce any performance or
to collect the payment of any amounts which may have been assigned to it or
to which it may be entitled at any time or times.
(b) To the extent and as provided in the Credit Agreement, at any time
and from time to time, the Agent shall have the right, but not the
obligation, to make test verifications of the Accounts and the Chattel
Paper in any manner and through any medium that it considers advisable, and
the Credit Parties shall furnish all such assistance and information as the
Agent may require in connection with such test verifications. To the extent
and as provided in the Credit Agreement, upon the Agent's request and at
the expense of the Credit Parties, the Credit Parties shall cause
independent public accountants or others satisfactory to the Agent to
furnish to the Agent reports showing reconciliations, aging and test
verifications of, and trial balances for, the Accounts. To the extent and
as provided in the Credit Agreement, the Agent in its own name or in the
name of others may communicate with account debtors on the Accounts and the
Chattel Paper to verify with them to the Agent's satisfaction the
existence, amount and terms of any Accounts and Chattel Paper.
4. Representations and Warranties. Each Credit Party hereby represents and
warrants to the Agent, for the benefit of the Lenders, that until all of the
Credit and Collateral Termination Events have occurred:
(a) Chief Executive Office; Books & Records; Legal Name; State of
Formation. Such Credit Party's chief executive office and chief place of
business are (and for the prior four months has been) located at the
locations set forth on Schedule 6.7 to the Credit Agreement (as updated
from time to time), and such Credit Party keeps its books and records at
such locations. Such Credit Party's exact legal name as registered in its
state of formation is as shown in the introductory paragraphs of this
Security Agreement, its state of formation is (and for the prior four
months has been) the state set forth on Schedule 6.1 to the Credit
Agreement, and its organizational number, if any, assigned by such state is
set forth on Schedule 6.1 to the Credit Agreement. Such Credit Party has
not, in the past four months, changed its name, been party to a merger,
consolidation or other change in structure or used any tradename not
disclosed on Schedule 6.8 to the Credit Agreement (as updated from time to
time).
(b) Location of Tangible Collateral. The location of all tangible
Collateral owned by such Credit Party (other than rolling stock, goods out
for repair, and goods in transit) is as shown on Schedule 6.7 to the Credit
Agreement (as updated from time to time). Schedule 4(b) hereto identifies
specifically the Spare Parts Location of all Spare Parts.
(c) Ownership. Such Credit Party is the legal and beneficial owner of
or possesses rights in its Collateral and has the right to pledge, sell,
assign or transfer the same.
(d) Security Interest/Priority. This Security Agreement creates a
valid security interest in favor of the Agent, for the benefit of the
Lenders, in the Collateral of such Credit Party and, when properly
perfected by filing, upon the Agent's obtaining Control of such Collateral
or upon compliance with the filing requirements of the FAA Act (or similar
law providing for the perfection of a security interest in Spare Parts),
shall constitute a valid first priority, perfected security interest in
such Collateral, to the extent such security interest can be perfected by
filing or through Control under the UCC or by filing this Security
Agreement with the FAA, free and clear of all Liens except for Permitted
Liens.
(e) Consents. Except for the filing or recording of UCC financing
statements or obtaining Control to perfect the Liens created by this
Security Agreement that may be perfected through the filing of a UCC
financing statement or obtaining Control, and except for complying with the
requirements of the FAA Act (or similar law providing for the perfection of
a security interest in Spare Parts), no consent or authorization of, filing
with, or other act by or in respect of, any arbitrator or Governmental
Authority and no consent of any other Person (including, without
limitation, any stockholder, member or creditor of such Credit Party), is
required (except as such have been duly obtained, made or given and are in
full force and effect) (i) for the grant by such Credit Party of the
security interest in the Collateral granted hereby or for the execution,
delivery or performance of this Security Agreement by such Credit Party or
(ii) for the perfection of such security interest or the exercise by the
Agent of the rights and remedies provided for in this Security Agreement,
except to the extent required by any Spare Parts Agreement, or other
agreements between third party landlords, warehousemen or bailees. with
respect to Collateral.
(f) Types of Collateral. None of the Collateral consists of, or is the
Proceeds of, As-Extracted Collateral, Consumer Goods, Farm Products,
Manufactured Homes or standing timber (as such term is used in the UCC).
(g) Accounts. With respect to such Credit Party's Accounts: (i) the
goods sold, rented or leased, licensed, or assigned and/or services
furnished giving rise to each Account and the Chattel Paper are not subject
to any security interest or Lien except the first priority, perfected
security interest granted to the Agent herein and except for Permitted
Liens; (ii) each Account and the papers and documents of the applicable
Credit Party relating thereto are, and all Chattel Paper is, genuine and in
all material respects what they purport to be; (iii) each Account and all
Chattel Paper arises out of a bona fide transaction for goods sold and
delivered (or in the process of being delivered), leased, licensed, or
assigned by such Credit Party or for services actually rendered by such
Credit Party to customers, including, but not limited to, any applicable
USG Entity, which transaction was conducted in the ordinary course of the
Credit Party's business and was completed in accordance with the terms of
any documents pertaining thereto; (iv) no Account of such Credit Party is
evidenced by any Instrument or Chattel Paper unless such
Instrument or Chattel Paper has been endorsed over and delivered to, or
submitted to the control of, the Agent at the Agent's request therefore;
(v) the amount of each Account as shown on the applicable Credit Party's
books and records, and on all invoices and statements which may be
delivered to the Agent with respect thereto, is due and payable to such
Credit Party; (vi) to such Credit Parties' knowledge, the account debtor
with respect to each Account and the obligor with respect to all Chattel
Paper has the capacity to contract; (vii) to such Credit Party's knowledge,
there are no proceedings or actions which are threatened or pending against
any account debtor whose business is material to the Credit Parties and
their Subsidiaries taken as a whole which are reasonably likely to have a
material adverse change in such account debtor's financial condition or the
collectibility of Accounts owing by it to the Credit Parties and (viii) no
surety bond was required or given in connection with any Account or any
Chattel Paper of such Credit Party or the contracts or purchase orders out
of which they arose.
(h) Inventory. To such Credit Party's knowledge, none of such Credit
Party's Inventory is held by a third party (other than another Credit
Party) pursuant to consignment (other than Spare Parts disposed of in such
Credit Party's ordinary course of business), sale or return, sale on
approval or similar arrangement. All of each Credit Party's Inventory has
been produced in compliance in all material respects with all requirements
of the Fair Labor Standards Act.
(i) Intellectual Property. All representations and warranties
contained in Section 6.17 of the Credit Agreement are incorporated herein
by reference.
(j) Documents, Instruments and Chattel Paper. All Documents,
Instruments and Chattel Paper describing, evidencing or constituting
Collateral are, to such Credit Party's knowledge, complete, valid, and
genuine.
(k) Equipment. With respect to such Credit Party's Equipment: (i) such
Credit Party has good title thereto or a leasehold interest therein; and
(ii) all such Equipment is in normal operating condition and repair and is
suitable for the uses to which it is customarily put in the conduct of such
Credit Party's business.
(l) Restrictions on Security Interest. Except as provided in the
Credit Agreement, such Credit Party is not party to any license or other
agreements which would materially limit the Agent's (or any of the Agent's
transferees) right to sell, lease, or otherwise use any Inventory or
Equipment upon the Agent's proper exercise of its remedies hereunder and
under the other Credit Documents.
(m) Purchase of Collateral. Within the 12-month period preceding the
Closing Date, none of the Credit Parties has purchased any of the
Collateral consisting of goods in a bulk transfer or in a transaction which
was outside the ordinary course of the business of such Credit Party's
seller.
(n) Certified Air Carriers. World Airways and North American are each
air carriers certified under 49 U.S.C. Section 44705 and all Spare Parts
used by them are maintained by or on behalf of either World Airways or
North American at the Spare Parts
Locations identified as such on Schedule 4(b) only (except for Spare Part
fly away kits located on Leased Aircraft).
(o) Spare Parts.
(i) The ownership, maintenance, operation and other use of each
item constituting Spare Parts (i) complies with all applicable
airworthiness standards and other requirements of the FAA Act, the
FARs and other applicable laws and (ii) is and has been maintained
strictly in accordance with an FAA-approved maintenance program (if
applicable);
(ii) All material and necessary approvals, authorizations,
consents, licenses, certificates, orders and permits of any
Governmental Authority having jurisdiction under any applicable law
with respect to such Credit Party's ownership, use, operation and
maintenance of any of the Spare Parts have been obtained, and all such
approvals, authorizations, consents, licenses, certificates, orders
and permits are in full force and effect and constitute sufficient
authorization therefor;
(iii) This Security Agreement is in due form for recording with
the FAA in accordance with the FAA Act;
(iv) Schedule 4(b) hereto, as amended or otherwise supplemented
from time to time by any Credit Party, sets forth the Spare Parts
Locations of all Spare Parts;
(v) The Spare Parts are not subject to any Intellectual Property
rights of or with any other Person which would require any consent of
any third party upon sale or disposition of such Spare Parts or the
payment of any monies to any third party upon such sale or other
disposition; and
(vi) Subject to the requirements or limitations set forth in any
Spare Parts Agreement, the sale or other disposition of any Spare
Parts by the Agent following a Default shall not require the consent
of any other Person and shall not constitute a breach or default under
any contract or agreement to which such Credit Party is a party or to
which such Spare Parts are bound.
(p) Aircraft Agreements.
(i) Each Aircraft Lease Agreement in effect on the date hereof
and all amendments thereto is described on Schedule 4(p) hereto.
(ii) Subject to the requirements or limitations set forth in any
Spare Parts Agreement, no consent of any party (other than such Credit
Party) to any Aircraft Lease Agreement is required, or purports to be
required, in connection with the execution, delivery and performance
of this Security Agreement.
(iii) Each Aircraft Lease Agreement has been duly authorized,
executed and delivered by each of the Credit Party's party thereto, is
in full force and effect, and constitutes a valid and legally
enforceable obligation of the parties thereto, subject to the effects
of bankruptcy, insolvency, reorganization, moratorium and other
similar laws relating to or affecting creditors' rights generally and
general equitable principles (whether considered in a proceeding in
equity or at law).
(iv) No consent or authorization of, filing with or other act by
or in respect of any Governmental Authority is required in connection
with the execution, delivery, performance, validity or enforceability
of any Aircraft Lease Agreement by any Credit Party party thereto
other than those which have been duly obtained, made or performed, are
in full force and effect and do not subject the scope of any such
Aircraft Lease Agreement to any limitation, either specific or general
in nature.
(v) There exists no default under or violation of any Aircraft
Lease Agreement by any Credit Party party thereto and no waiver of any
such default or violation is currently in effect.
(vi) The right, title and interest of such Credit Party in, to
and under the Aircraft Lease Agreements are not subject to any
defense, offset, recoupment, counterclaim or claim known to such
Credit Party.
(vii) None of the parties to any Aircraft Lease Agreement is a
Governmental Authority.
5. Covenants. Each Credit Party covenants that, until all of the Credit and
Collateral Termination Events have occurred, such Credit Party shall:
(a) Other Liens. Defend the Collateral against the claims and demands
of all other parties claiming an interest therein, and keep the Collateral
free from all Liens, except for Permitted Liens. Such Credit Party shall
not sell, exchange, transfer, assign, lease or otherwise dispose of any of
the Collateral or any interest therein, except as permitted under the
Credit Agreement or the other Credit Documents.
(b) Preservation of Collateral. Keep the Collateral in good order,
condition and repair in all material respects; not use the Collateral in
violation of the provisions of this Security Agreement; not use the
Collateral in violation of any other agreement relating to the Collateral
or any policy insuring the Collateral or any applicable statute, law,
bylaw, rule, regulation or ordinance; not permit any Collateral to be or
become a fixture to real property unless the Agent has a valid, perfected
and first priority security interest for the benefit of the Agent and the
Lenders in such real property; and not, without the prior written consent
of the Agent, alter or remove any identifying symbol or serial number on
its Equipment or, if any, on its Inventory. Without limiting the foregoing,
the Credit Parties shall cause to be performed on all Spare Parts all
applicable mandatory airworthiness directives, FARs, Special Federal
Aviation Regulations, and
manufacturers' service bulletins relating to airworthiness, the compliance
date of which shall occur during the term of this Security Agreement.
(c) Possession or Control of Certain Collateral. If (i) any amount
payable under or in connection with any of the Collateral shall be or
become evidenced by any Instrument, Tangible Chattel Paper or Supporting
Obligation or (ii) if any Collateral shall be stored or shipped subject to
a Document or (iii) if any Collateral shall consist of Investment Property
in the form of certificated securities, promptly notify the Agent of the
existence of such Collateral and, at the request of the Agent, deliver such
Instrument, Chattel Paper, Supporting Obligation, Document or Investment
Property to the Agent, duly endorsed in a manner satisfactory to the Agent
(or, with respect to certificated securities, provide duly executed blank
stock powers in such form as may be reasonably requested by the Agent), to
be held as Collateral pursuant to this Security Agreement. If any
Collateral shall consist of Deposit Accounts, Securities Accounts, Chattel
Paper in electronic form, Letter-of-Credit Rights or uncertificated
Investment Property, execute and deliver (and, with respect to any
Collateral consisting of uncertificated Investment Property, cause the
Securities Intermediary or Commodities Intermediary with respect to such
Investment Property to execute and deliver) to the Agent, in accordance
with the terms of the Credit Agreement, all control agreements,
assignments, instruments or other documents as reasonably requested by the
Agent for the purposes of obtaining and maintaining Control of such
Collateral, including, but not limited to, Deposit Account Control
Agreements and Securities Account Control Agreements.
(d) Changes in Corporate Structure or Location. Except as otherwise
permitted in the Credit Agreement, not, without providing 30 days prior
written notice to the Agent, or, with respect to Spare Parts, without
satisfying the notice requirements contained in Section 5(i) hereof, and
without filing (or confirming that the Agent has filed) such amendments to
any previously filed financing statements or filings with the FAA as the
Agent may require, (i) alter its corporate existence or, in one transaction
or a series of transactions, merge into or consolidate with any other
entity, or sell all or substantially all of its assets, (ii) change its
state of incorporation or formation, (iii) change its registered corporate
name, (iv) change the location of its chief executive office and chief
place of business (as well as its books and records) from the locations set
forth on Schedule 6.7 to the Credit Agreement or (v) change the location of
its Collateral from the locations set forth for such Credit Party on the
reports provided pursuant to Section 7.2 of the Credit Agreement (except
for Spare Part fly away kits stored on Leased Aircraft).
(e) Inspection. Allow the Agent or its representatives to visit and
inspect the Collateral as set forth in Section 7.7 of the Credit Agreement.
The Credit Parties shall be responsible for all required inspections of
Spare Parts and licensing or re-licensing of the same in accordance with
all applicable FAA and other governmental requirements. All inspections,
maintenance, modifications, repairs, and overhauls of any Spare Parts shall
be performed by personnel authorized by the FAA to perform such services to
the extent required under the FAA Act.
(f) Perfection of Security Interest. Such Credit Party hereby
authorizes the Agent to prepare and file such financing statements
(including continuation statements and in lieu statements) or amendments
thereof or supplements thereto, FAA filings or registrations or amendments
thereof or supplements thereto, including, but not limited to, filing a
copy of this Security Agreement with the FAA in Oklahoma City, Oklahoma (or
at such other office as the FAA may designate), or other instruments as the
Agent may from time to time deem necessary or appropriate to perfect and
maintain the security interests granted hereunder in accordance with the
UCC and/or the FAA Act, subject to Permitted Liens, to ensure the first
priority of such security interests. Any financing statement or FAA filing
or registration filed by the Agent may contain a general description of the
collateral covered thereby, as permitted by the UCC and/or the FAA Act,
which states that the security interest attaches to all personal property
or to all assets, and, in the case of an FAA filing, all Spare Parts
located at a specified Spare Parts Location, of the debtor. Such Credit
Party shall from time to time upon request by the Agent also execute and
deliver to the Agent such agreements, assignments or instruments (including
affidavits, notices, reaffirmations and amendments and restatements of
existing documents, as the Agent may reasonably request, except that no
title certificates are required to reflect a Lien in favor of the Agent)
and do all such other things as the Agent may reasonably deem necessary or
appropriate (i) to assure the Agent that its security interests hereunder
are perfected and, subject to Permitted Liens, of the first priority,
including, without limitation, (A) such financing statements (including
continuation statements and in lieu statements) or amendments thereof or
supplements thereto, FAA filings or registrations or amendments thereto or
supplements thereof, or other instruments as the Agent may from time to
time reasonably request in order to perfect and maintain the security
interests granted hereunder and to ensure the first priority (subject to
Permitted Liens) thereof in accordance with the UCC and/or the FAA Act, (B)
with regard to Copyrights, a Notice of Grant of Security Interest in
Copyrights for filing with the United States Copyright Office in the form
of Schedule 5(f)(i) attached hereto, (C) with regard to Patents, a Notice
of Grant of Security Interest in Patents for filing with the United States
Patent and Trademark Office in the form of Schedule 5(f)(ii) attached
hereto and (D) with regard to Trademarks, a Notice of Grant of Security
Interest in Trademarks for filing with the United States Patent and
Trademark Office in the form of Schedule 5(f)(iii) attached hereto, (ii) to
consummate the transactions contemplated hereby and (iii) to otherwise
protect and assure the Agent of its rights and interests hereunder. In the
event for any reason the law of any jurisdiction other than Georgia or the
United States (with respect to Spare Parts) becomes or is applicable to the
Collateral of any Credit Party or any part thereof, or to any of the
Secured Obligations, such Credit Party agrees from time to time upon
request of the Agent to execute and deliver all such instruments and to do
all such other things as the Agent in its sole discretion deems necessary
or appropriate to preserve, protect and enforce the security interests of
the Agent and the first priority thereof (subject to Permitted Liens) under
the law of such other jurisdiction (and, if such Credit Party shall fail to
do so promptly upon the request of the Agent, then the Agent may execute
any and all such requested documents on behalf of such Credit Party
pursuant to the power of attorney granted hereinabove). Such Credit Party
agrees to xxxx its books and records, or, if such books and records are in
electronic form, note electronically within such books and records in a
manner sufficient, to reflect the security interest of the Agent in the
Collateral.
(g) Collateral Held by Warehouseman, Bailee, etc. If any Collateral is
at any time in the possession or control of a warehouseman, bailee or any
agent or processor of such Credit Party, (i) notify the Agent of such
possession, (ii) notify such Person of the Agent's security interest for
the benefit of the Agent and the Lenders in such Collateral, (iii) instruct
such Person to hold all such Collateral for the Agent's account subject to
the Agent's instructions and (iv) obtain (or, use commercially reasonable
efforts to obtain) an Acknowledgment Agreement from such Person; provided
that, if any Spare Parts are in the possession or control of a
warehouseman, bailee or any Agent or processor, such Credit Party shall
comply with Section 5(i) below.
(h) Treatment of Accounts. (i) Comply with all provisions of the
Credit Agreement relating to the establishment and maintenance of the
Collection Accounts and the Cash Concentration Accounts, (ii) comply with
all reporting requirements set forth in the Credit Agreement with respect
to Accounts, (iii) not grant or extend the time for payment of any Account,
or compromise or settle any Account for less than the full amount thereof,
or release any person or property, in whole or in part, from payment
thereof, or allow any credit or discount thereon, other than as normal and
customary in the ordinary course of such Credit Party's business, (iv)
maintain at its principal place of business a record of Accounts consistent
with its customary business practices, (v) upon the occurrence and during
the continuation of any Event of Default, set aside and hold as trustee for
the Agent any merchandise which is returned by a customer or account debtor
or otherwise recovered. Unless and until an Event of Default occurs and is
continuing, such Credit Party may settle and adjust disputes and claims
with its customers and account debtors, handle returns and recoveries and
grant discounts, credits and allowances in the ordinary course of its
business as presently conducted and otherwise for amounts and on terms
which such Credit Party in good faith considers advisable. However, upon
the occurrence of any Event of Default and during the continuation thereof,
if so instructed by the Agent, such Credit Party shall settle and adjust
disputes and claims, at no expense to the Agent, but no discount, credit or
allowance other than on normal trade terms in the ordinary course of
business shall be granted to any customer or account debtor and no returns
of merchandise shall be accepted by such Credit Party without the Agent's
consent. The Agent may (but shall not be required to), at all times upon
the occurrence of any Event of Default and during the continuation thereof,
settle or adjust disputes and claims directly with customers or account
debtors for amounts and upon terms which the Agent considers advisable.
(i) Covenants relating to Spare Parts.
(i) Except as provided in this paragraph and Section 5(i)(ii)
below, neither move nor relocate any Collateral constituting Spare
Parts from any Spare Parts Location to any other location that is not
a Spare Parts Location (each such location, a "Non-Designated
Location"), provided that any Credit Party may move or otherwise
relocate such Spare Parts to a Non-Designated Location only to the
extent and for so long as such parts are (i) located in or on Leased
Aircraft subject
to a Spare Parts Agreement or with respect to which such Credit Party
at the request of the Agent with reasonable promptness of such
request, commences and uses commercially reasonable efforts to obtain
an acceptable Spare Parts Agreement, or (ii) if not on a Leased
Aircraft, at a location tracked on the report delivered pursuant to
Section 7.2 of the Credit Agreement, subject to the Credit Party's
obligation under subsection (ii) below. The Collateral constituting
Spare Parts shall be maintained by or on behalf of World Airways or
North American at all times.
(ii) Upon (i) any Credit Party's acquiring rights after the date
hereof in or to any Collateral constituting Spare Parts which are at
such time located or intended to be located at any Non-Designated
Location or (ii) the movement of any Collateral constituting Spare
Parts to any Non-Designated Location (except, in any such instances
under clauses (i) or (ii), as may otherwise be expressly permitted in
Section 5(i)(i) above), such Credit Party shall, to the extent not
otherwise provided in the reports delivered to the Agent pursuant to
Section 7.2 of the Credit Agreement, promptly execute and deliver to
the Agent a written notice in form and substance reasonably
satisfactory to the Agent (containing a written acknowledgment
signature block for the Agent) describing in reasonable detail such
event, the Credit Party acquiring such Spare Parts (if applicable),
such Spare Parts and such Non-Designated Location (each such notice,
an "Additional Spare Parts Location Notice") and, upon receipt and
acknowledgment by the Agent of the report delivered pursuant to
Section 7.2 or any Additional Spare Parts Location Notice, (x) each
Non-Designated Location specified therein shall be (and shall be
deemed to be) a "Spare Parts Location" (as defined in this Security
Agreement) in all respects and for all purposes and (y) Schedule 4(b)
to this Security Agreement shall be (and shall be deemed to be)
amended and supplemented in all respects to include such
Non-Designated Location as a Spare Parts Location thereunder, all
without further action of any other Person. Such Credit Party shall,
in addition to executing and delivering any agreement, instrument or
document and taking such other action required under or requested by
the Agent in accordance with this Security Agreement, execute and
deliver to the Agent, in each case in form and substance reasonably
satisfactory to the Agent, (1) a supplement so as to provide, upon the
filing of such supplement with the FAA, the Agent with a first
priority perfected Lien in and to any Spare Parts kept at any such
Spare Parts Location (each such supplement, a "Supplement") and (2)
any other agreement, instrument or document evidencing any amendment
or supplement to Schedule 4(b), including, but not limited to, as
required by Section 5(g) hereto, in respect of (i) the report provided
pursuant to Section 7.2, or (ii) any Additional Spare Parts Location
Notice.
(iii) Upon any Credit Party becoming aware of the assignment of
an Aircraft Lease Agreement by the lessor thereunder, such Credit
Party shall promptly notify the Agent of such assignment and shall
provide the Agent with the name and address of the assignee of such
Aircraft Lease Agreement.
(j) Covenants Relating to Inventory.
(i) Maintain, keep and preserve its Inventory in usable condition
at its own cost and expense, in accordance with the provisions of the
Credit Agreement.
(ii) Comply with all reporting requirements set forth in the
Credit Agreement with respect to Inventory.
(k) Covenants Relating to Copyrights.
Unless such Credit Party believes it is necessary or appropriate in the
prudent conduct of its business to do or not do any such thing:
(i) Employ the Copyright for each Work with such notice of
copyright as may be required by law to secure copyright protection.
(ii) Not do any act or knowingly omit to do any act whereby any
material Copyright may become invalidated and (A) not do any act, or
knowingly omit to do any act, whereby any material Copyright may
become injected into the public domain; (B) notify the Agent promptly
if it knows, or has reason to know, that any material Copyright may
become injected into the public domain or of any adverse determination
or development (including, without limitation, the institution of, or
any such determination or development in, any court or tribunal in the
United States or any other country) regarding such Credit Party's
ownership of any such Copyright or its validity; (C) take all
necessary steps as it shall deem appropriate under the circumstances,
to maintain and pursue each application (and to obtain the relevant
registration) and to maintain each registration of each material
Copyright owned by such Credit Party including, without limitation,
filing of applications for renewal where necessary; and (D) promptly
notify the Agent of any material infringement of any material
Copyright of such Credit Party of which it becomes aware and take such
actions as it shall reasonably deem appropriate under the
circumstances to protect such Copyright, including, where appropriate,
the bringing of suit for infringement, seeking injunctive relief and
seeking to recover any and all damages for such infringement.
(iii) Not make any assignment or agreement in conflict with the
security interest in the Copyrights of such Credit Party hereunder.
(l) Covenants Relating to Patents and Trademarks.
Unless such Credit Party believes it is necessary or appropriate
in the prudent conduct of its business to do or not do any such thing:
(i) (A) Continue to use each Trademark on each and every
trademark class of goods applicable to its current line as reflected
in its current catalogs, brochures and price lists to maintain such
Trademark in full force free from any claim of abandonment for
non-use, (B) maintain as in the past the quality of products and
services offered under such Trademark, (C) employ such Trademark
with the appropriate notice of registration, (D) not adopt or use any
xxxx which is confusingly similar or a colorable imitation of such
Trademark unless the Agent, for the benefit of the Lenders, shall
obtain a perfected security interest in such xxxx pursuant to this
Security Agreement, (E) not (and not permit any licensee or
sublicensee thereof to) do any act or knowingly omit to do any act
whereby any Trademark may become invalidated and (F) do or cause to be
done all other things necessary to preserve and keep in full effect
all Trademarks material to the conduct of such Credit Party's
business.
(ii) Not do any act, or omit to do any act, whereby any Patent
may become abandoned or dedicated.
(iii) Promptly notify the Agent if it knows, or has reason to
know, that any application or registration relating to any Patent or
Trademark may become abandoned or dedicated, or of any adverse
determination or development (including, without limitation, the
institution of, or any such determination or development in, any
proceeding in the United States Patent and Trademark Office or any
court or tribunal in any country) regarding such Credit Party's
ownership of any such Patent or Trademark or its right to register the
same or to keep, maintain and use the same.
(iv) Whenever such Credit Party, either by itself or through an
agent, employee, licensee or designee, shall file an application for
the registration of any Patent or Trademark with the United States
Patent and Trademark Office or any similar office or agency in any
other country or any political subdivision thereof, such Credit Party
shall report such filing to the Agent and the Lenders within five
Business Days after the last day of the fiscal quarter in which such
filing occurs. Upon request of the Agent, such Credit Party shall
execute and deliver any and all agreements, instruments, documents and
papers as the Agent may request to evidence the Agent's and the
Lenders' security interest in any Patent or Trademark and the goodwill
and general intangibles of such Credit Party relating thereto or
represented thereby.
(v) Take all reasonable and necessary steps, including, without
limitation, in any proceeding before the United States Patent and
Trademark Office, or any similar office or agency in any other country
or any political subdivision thereof, to maintain and pursue each
application (and to obtain the relevant registration) and to maintain
each registration of the Patents and Trademarks, including, without
limitation, filing of applications for renewal, affidavits of use and
affidavits of incontestability.
(vi) Promptly notify the Agent and the Lenders after it learns
that any Patent or Trademark included in the Collateral is infringed,
misappropriated or diluted by a third party and promptly xxx for
infringement, misappropriation or dilution, to seek injunctive relief
where appropriate and to recover any and all damages for such
infringement, misappropriation or dilution, or take such other
actions as it shall reasonably deem appropriate under the
circumstances to protect such Patent or Trademark.
(vii) Not make any assignment or agreement in conflict with the
security interest in the Patents or Trademarks of such Credit Party
created hereunder or under any other Credit Document.
(m) New Patents, Copyrights and Trademarks. Quarterly, within five (5)
Business Days after the last day of each fiscal quarter, provide the Agent
with (i) a listing of all applications, if any, for new Copyrights, Patents
or Trademarks (together with a listing of the issuance of registrations or
letters on present applications), which new applications and issued
registrations or letters shall be subject to the terms and conditions
hereunder, and (ii) (A) with respect to Copyrights, a duly executed Notice
of Grant of Security Interest in Copyrights, (B) with respect to Patents, a
duly executed Notice of Grant of Security Interest in Patents, (C) with
respect to Trademarks, a duly executed Notice of Grant of Security Interest
in Trademarks or (D) such other duly executed documents as the Agent may
request in a form acceptable to the Agent and such Credit Party and
suitable for recording to evidence the security interest in the Copyright,
Patent or Trademark which is the subject of such new application.
(n) Commercial Tort Claims; Notice of Litigation. (i) Quarterly,
within five (5) Business Days after the last day of each fiscal quarter,
forward to the Agent written notification of any and all Commercial Tort
Claims, including, but not limited to, any and all actions, suits, and
proceedings before any court or Governmental Authority by such Credit Party
and (ii) execute and deliver such statements, documents and notices and do
and cause to be done all such things as may be required by the Agent, or
required by law, including all things which may from time to time be
necessary under the UCC to fully create, preserve, perfect and protect the
priority of the Agent's security interest in any Commercial Tort Claims.
(o) Bank Accounts. At all times, maintain the Collection Accounts and
the Cash Concentration Accounts and any replacement or successor accounts
relating thereto in accordance with the terms of the Deposit Account
Control Agreements and the Credit Agreement, as applicable, and cause all
amounts received by such Credit Party to be deposited into the applicable
Collection Account or Cash Concentration Account, as the case may be, and
to be applied as set forth in the applicable Deposit Account Control
Agreement and the Credit Agreement, as appropriate. All amounts on deposit
in the Collection Accounts, the Cash Concentration Accounts and any
replacement or successor account relating thereto shall be subject to the
Lien of the Agent hereunder.
(p) Insurance. Insure, repair and replace the Collateral of such
Credit Party as set forth in the Credit Agreement. All insurance proceeds
shall be subject to the security interest of the Agent hereunder and shall
be applied by the Agent or retained by such Credit Party as provided in the
Credit Agreement.
(q) Covenants Relating to the Assigned Agreements.
(i) Upon the reasonable request of the Agent, such Credit Party
shall, at its expense, (A) furnish to the Agent copies of all material
notices, requests and other documents received by such Credit Party
under or pursuant to the material Assigned Agreements, and such other
material information and reports regarding the Assigned Agreements and
(B) upon the occurrence of and during the continuance of an Event of
Default, make to any other party to any Assigned Agreement such
demands and requests for information and reports or for action as such
Credit Party is entitled to make thereunder.
(ii) Unless such Credit Party believes it is necessary or
appropriate in the prudent conduct of its business, such Credit Party
shall not (A) cancel or terminate any Assigned Agreement of such
Credit Party or consent to or accept any cancellation or termination
thereof; (B) amend or otherwise modify any Assigned Agreement of such
Credit Party or give any consent, waiver or approval thereunder; (C)
waive any default under or breach of any Assigned Agreement of such
Credit Party; or (D) take any other action in connection with any
Assigned Agreement of such Credit Party which would impair the value
of the interest or rights of such Credit Party thereunder or which
would impair the interests or rights of the Agent.
6. Special Provisions Relating to Accounts. Anything herein to the contrary
notwithstanding, as amongst the Agent, the Lenders and the Credit Parties, each
of the Credit Parties shall remain liable under each of the Accounts to observe
and perform all the conditions and obligations to be observed and performed by
it thereunder, all in accordance with the terms of any agreement giving rise to
each such Account. Neither the Agent nor any Lender shall have any obligation or
liability under any Account (or any agreement giving rise thereto) by reason of
or arising out of this Security Agreement or the receipt by the Agent or any
Lender of any payment relating to such Account pursuant hereto, nor shall the
Agent or any Lender be obligated in any manner to perform any of the obligations
of a Credit Party under or pursuant to any Account (or any agreement giving rise
thereto), to make any payment, to make any inquiry as to the nature or the
sufficiency of any payment received by it or as to the sufficiency of any
performance by any party under any Account (or any agreement giving rise
thereto), to present or file any claim, to take any action to enforce any
performance or to collect the payment of any amounts which may have been
assigned to it or to which it may be entitled at any time or times.
7. Special Provisions Regarding Inventory.
(a) Notwithstanding anything to the contrary contained in this
Security Agreement, each Credit Party may, unless and until an Event of
Default occurs and is continuing and the Agent instructs such Credit Party
otherwise, without further consent or approval of the Agent, use, consume,
sell, rent, lease and exchange the Inventory in the ordinary course of its
business as presently conducted, whereupon, in the case of such a sale or
exchange, the security interest created hereby in the Inventory so sold or
exchanged (but not in any proceeds arising from such sale or exchange)
shall cease immediately without any further action on the part of the
Agent.
(b) Upon the Lenders' making any Loan pursuant to the Credit Agreement
or the Issuing Bank issuing any Letter of Credit pursuant to the Credit
Agreement, each Credit Party shall be deemed to have warranted, subject to
any limitations set forth in the Credit Agreement, that all warranties of
such Credit Party set forth in this Security Agreement with respect to its
Inventory are true and correct in all material respects with respect to
such Inventory, including without limitation that such Inventory is located
at a location set forth on Schedule 6.7 to the Credit Agreement.
8. Performance of Obligations; Advances by Agent. On failure of any Credit
Party to perform any of the covenants and agreements contained herein, the Agent
may, at its sole option and in its sole discretion, perform or cause to be
performed the same and in so doing may (but shall have no obligation to do so)
expend such sums as the Agent may reasonably deem advisable in the performance
thereof, including, without limitation, the payment of any insurance premiums
(upon prior written notice to the applicable Credit Parties), the payment of any
taxes (except to the extent such payment is being contested in good faith by a
Credit Party in appropriate proceedings and against which adequate reserves are
being maintained in accordance with GAAP), a payment to obtain a release of a
Lien or potential Lien (other than a Permitted Lien), expenditures made in
defending against any adverse claim (other than a Permitted Lien) and all other
expenditures which the Agent or the Lenders may make for the protection of the
security interest hereof or may be compelled to make by operation of law. All
such sums and amounts so expended shall be repayable by the Credit Parties on a
joint and several basis promptly upon timely notice thereof and demand therefor,
shall constitute additional Secured Obligations and shall bear interest from the
date said amounts are expended at the default rate set forth in Section 4.2 of
the Credit Agreement for Revolving Loans that are Base Rate Loans. No such
performance of any covenant or agreement by the Agent or the Lenders on behalf
of any Credit Party, and no such advance or expenditure therefor, shall relieve
the Credit Parties of any default under the terms of this Security Agreement,
the other Credit Documents or any Lender Hedging Agreement or any agreement
pertaining to Bank Products. The Agent may make any payment hereby authorized in
accordance with any xxxx, statement or estimate procured from the appropriate
public office or holder of the claim to be discharged without inquiry into the
accuracy of such xxxx, statement or estimate or into the validity of any tax
assessment, sale, forfeiture, tax lien, title or claim except to the extent such
payment is being contested in good faith by a Credit Party in appropriate
proceedings and against which adequate reserves are being maintained in
accordance with GAAP.
9. Events of Default.
An Event of Default under the Credit Agreement shall be an Event of
Default hereunder (an "Event of Default").
10. Remedies.
(a) General Remedies. Upon the occurrence of an Event of Default and
during continuation thereof, the Agent and the Lenders shall have, in
addition to the rights and remedies provided herein, in the Credit
Documents, or (as to any Lender or its affiliate that is party thereto) in
any Lender Hedging Agreement or in any agreement pertaining to Bank
Products or by law (including, but not limited to, levy of attachment,
garnishment and the rights and remedies set forth in the Uniform Commercial
Code of the jurisdiction applicable to the affected Collateral), the rights
and remedies of a secured party under the UCC (regardless of whether the
UCC is the law of the jurisdiction where the rights and remedies are
asserted and regardless of whether the UCC applies to the affected
Collateral) the rights and remedies of a secured party under the FAA Act,
and further, the Agent may, with or without judicial process or the aid and
assistance of others, (i) enter on any premises (including, but not limited
to, Leased Aircraft, subject to the provisions of any Spare Parts
Agreements then in effect) on which any of the Collateral may be located
and, without resistance or interference by the Credit Parties, take
possession of the Collateral, (ii) dispose of any Collateral on any such
premises (including, but not limited to, Leased Aircraft, subject to the
provisions of any Spare Parts Agreements then in effect), (iii) require the
Credit Parties to assemble and make available to the Agent at the expense
of the Credit Parties any Collateral at any place and time designated by
the Agent which is reasonably convenient to both parties, subject to the
provisions of any Spare Parts Agreements then in effect, (iv) remove any
Collateral from any such premises (including, but not limited to, Leased
Aircraft, subject to the provisions of any Spare Parts Agreements then in
effect) for the purpose of effecting sale or other disposition thereof,
and/or (v) without demand and without advertisement, notice, hearing or
process of law, all of which each of the Credit Parties hereby waives to
the fullest extent permitted by law, at any place and time or times, sell
and deliver any or all Collateral held by or for it at public or private
sale, by one or more contracts, in one or more parcels, for cash, upon
credit or otherwise, at such prices and upon such terms as the Agent deems
advisable, in its sole discretion. Neither the Agent's compliance with any
applicable state or federal law in the conduct of such sale, nor its
disclaimer of any warranties relating to the Collateral shall be considered
to affect the commercial reasonableness of such sale, except to the extent
required by law. In addition to all other sums due the Agent and the
Lenders with respect to the Secured Obligations, the Credit Parties shall
pay the Agent and each of the Lenders all costs and expenses incurred by
the Agent or any such Lender, including, but not limited to, reasonable
attorneys' fees actually incurred and court costs, in obtaining or
liquidating the Collateral, in enforcing payment of the Secured
Obligations, or in the prosecution or defense of any action or proceeding
by or against the Agent or the Lenders or the Credit Parties concerning any
matter arising out of or connected with this Security Agreement, any
Collateral or the Secured Obligations, including, without limitation, any
of the foregoing arising in, arising under or related to a case under any
bankruptcy, insolvency or similar law. To the extent the rights of notice
cannot be legally waived hereunder, each Credit Party agrees that any
requirement of reasonable notice shall be met if such notice is personally
served on or mailed, postage prepaid, to the Credit Parties in accordance
with the notice provisions of Section 14.4 of the Credit Agreement at least
ten (10) days before the time of sale or other event giving rise to the
requirement of such notice. The Agent and the Lenders shall not be
obligated to make any sale or other disposition of the Collateral
regardless of notice having been given. To the extent permitted by law, the
Agent and any Lender may be a purchaser at any such sale. To the extent
permitted by applicable law, each of the Credit Parties hereby waives all
of its rights of redemption with respect to any such sale. Subject to the
provisions of applicable law, the Agent and the Lenders may postpone or
cause the postponement of the sale of all or any portion of the Collateral
by
announcement at the time and place of such sale, and such sale may, without
further notice, to the extent permitted by law, be made at the time and
place to which the sale was postponed, or the Agent and the Lenders may
further postpone such sale by announcement made at such time and place.
(b) Remedies Relating to Accounts. Upon the occurrence of an Event of
Default and during the continuation thereof, whether or not the Agent has
exercised any or all of its rights and remedies hereunder, the Agent shall
have the right to (i) enforce any Credit Party's rights against any account
debtors and obligors on such Credit Party's Accounts (ii) notify (or cause
its designee to notify) any Credit Party's customers and account debtors
that the Accounts of such Credit Party have been assigned to the Agent or
of the Agent's security interest therein, (iii) (either in its own name or
in the name of a Credit Party or both) demand, collect, receive, take
receipt for, sell, xxx for, compound, settle, compromise and give
acquittance for any and all amounts due or to become due on any Account,
and (iv) in the Agent's discretion, file any claim or take any other action
or proceeding to protect and realize upon the security interest of the
Lenders in the Accounts. Each Credit Party acknowledges and agrees that the
Proceeds of its Accounts remitted to or on behalf of the Agent in
accordance with the provisions hereof shall be solely for the Agent's own
convenience and that such Credit Party shall not have any right, title or
interest in such Proceeds or in any such other amounts except as expressly
provided herein. The Agent and the Lenders shall have no liability or
responsibility to any Credit Party for acceptance of a check, draft or
other order for payment of money bearing the legend "payment in full" or
words of similar import or any other restrictive legend or endorsement or
be responsible for determining the correctness of any remittance. The Agent
shall have no obligation to apply or give credit for any item included in
proceeds of Accounts or other Collateral until the applicable Collection
Bank has received final payment therefor at its offices in cash. However,
if the Agent does permit credit to be given for any item prior to a
Collection Bank receiving final payment therefor and such Collection Bank
fails to receive such final payment or an item is charged back to the Agent
or any Collection Bank for any reason, the Agent may at its election in
either instance charge the amount of such item back against any such
Collection Accounts, together with interest thereon at a rate per annum
equal to the Default Rate set forth in Section 4.2 of the Credit Agreement.
Each Credit Party hereby agrees to indemnify the Agent and the Lenders from
and against all liabilities, damages, losses, actions, claims, judgments,
costs, expenses, charges and reasonable attorneys' fees suffered or
actually incurred by the Agent or the Lenders (each, an "Indemnified
Party") because of the maintenance of the foregoing arrangements except as
relating to or arising out of the gross negligence or willful misconduct of
an Indemnified Party or its officers, employees or agents or an Indemnified
Party's breach of this Security Agreement or any Credit Documents in any
material respect. In the case of any investigation, litigation or other
proceeding, the foregoing indemnity shall be effective whether or not such
investigation, litigation or proceeding is brought by a Credit Party, its
directors, shareholders or creditors or an Indemnified Party or any other
Person or any other Indemnified Party is otherwise a party thereto. The
Agent shall have no liability or responsibility to any Credit Party for a
Collection Bank accepting any check, draft or other order for payment of
money bearing the legend "payment in full" or words of similar import or
any other restrictive legend or endorsement whatsoever or be responsible
for determining the
correctness of any remittance (it being understood that this sentence shall
in no way affect the liability or responsibility of any such Collection
Bank).
(c) Access. In addition to the rights and remedies hereunder, upon the
occurrence of an Event of Default and during the continuation thereof, the
Agent shall have the right to enter and remain upon the various premises
(including, but not limited to, Leased Aircraft, but subject to the
provisions of any applicable Spare Parts Agreements) of the Credit Parties
without cost or charge to the Agent, and use the same, together with
materials, supplies, books and records of the Credit Parties for the
purpose of collecting and liquidating the Collateral, or for preparing for
sale and conducting the sale of the Collateral, whether by foreclosure,
auction or otherwise. In addition, the Agent may remove Collateral, or any
part thereof, from such premises and/or any records with respect thereto,
but subject to the provisions of any applicable Spare Parts Agreements, in
order to effectively collect or liquidate such Collateral. If the Agent
exercises its right to take possession of the Collateral, each Credit Party
shall also at its expense perform any and all other steps reasonably
requested by the Agent to preserve and protect the security interest hereby
granted in the Collateral, such as placing and maintaining signs indicating
the security interest of the Agent, appointing overseers for the Collateral
and maintaining inventory records.
(d) Nonexclusive Nature of Remedies. Failure by the Agent or the
Lenders to exercise any right, remedy or option under this Security
Agreement, any other Credit Document, any Lender Hedging Agreement or any
agreement pertaining to Bank Products or as provided by law, or any delay
by the Agent or the Lenders in exercising the same, shall not operate as a
waiver of any such right, remedy or option. No waiver hereunder shall be
effective unless it is in writing, signed by the party against whom such
waiver is sought to be enforced and then only to the extent specifically
stated, which in the case of the Agent or the Lenders shall only be granted
as provided herein. To the extent permitted by law, neither the Agent, the
Lenders, nor any party acting as attorney for the Agent or the Lenders,
shall be liable hereunder for any acts or omissions or for any error of
judgment or mistake of fact or law other than their gross negligence or
willful misconduct hereunder and other than the breach of this Security
Agreement or any other Credit Documents in any material respect. The rights
and remedies of the Agent and the Lenders under this Security Agreement
shall be cumulative and not exclusive of any other right or remedy which
the Agent or the Lenders may have.
(e) Retention of Collateral. The Agent may, after providing the
notices required by Section 9-620 of the UCC or otherwise complying with
the requirements of applicable law of the relevant jurisdiction, accept or
retain the Collateral in full or partial satisfaction of the Secured
Obligations. Unless and until the Agent shall have provided such notices,
however, the Agent shall not be deemed to have retained any Collateral in
satisfaction of any Secured Obligations for any reason.
(f) Deficiency. In the event that the proceeds of any sale, collection
or realization are insufficient to pay all amounts to which the Agent or
the Lenders are legally entitled, the Credit Parties shall be jointly and
severally liable for the deficiency, together with interest thereon at the
Default Rate set forth in Section 4.2 of the Credit
Agreement, together with the costs of collection and the reasonable fees of
any attorneys actually incurred employed by the Agent to collect such
deficiency. Any surplus remaining after the full payment and satisfaction
of the Secured Obligations shall be returned to the Credit Parties or to
whomsoever a court of competent jurisdiction shall determine to be entitled
thereto.
(g) Other Security. To the extent that any of the Secured Obligations
are now or hereafter secured by property other than the Collateral
(including, without limitation, real and personal property owned by a
Credit Party), or by a guarantee, endorsement or property of any other
Person, then the Agent and the Lenders shall have the right to proceed
against such other property, guarantee or endorsement upon the occurrence
of any Event of Default, and the Agent and the Lenders have the right, in
their sole discretion, to determine which rights, security, liens, security
interests or remedies the Agent and the Lenders shall at any time pursue,
relinquish, subordinate, modify or take with respect thereto, without in
any way modifying or affecting any of them or any of the Agent's and the
Lenders' rights or the Secured Obligations under this Security Agreement,
under any other of the Credit Documents or under any Lender Hedging
Agreement or agreement pertaining to Bank Products (to the extent the
obligations of such Credit Party thereunder constitute Secured
Obligations).
11. Rights of the Agent.
(a) Power of Attorney. Each Credit Party hereby designates and
appoints the Agent, on behalf of the Lenders, and each of its designees or
agents, as attorney-in-fact of such Credit Party, irrevocably and with
power of substitution, with authority to take any or all of the following
actions upon the occurrence and during the continuation of an Event of
Default:
(i) to demand, collect, settle, compromise, adjust, give
discharges and releases, all as the Agent may reasonably determine;
(ii) to commence and prosecute any actions at any court for the
purposes of collecting any Collateral and enforcing any other right in
respect thereof;
(iii) to defend, settle, adjust or compromise any action, suit or
proceeding brought and, in connection therewith, give such discharge
or release as the Agent may deem reasonably appropriate;
(iv) to receive, open and dispose of mail addressed to a Credit
Party and endorse checks, notes, drafts, acceptances, money orders,
bills of lading, warehouse receipts or other instruments or documents
evidencing payment, shipment or storage of the goods giving rise to
the Collateral of such Credit Party, or securing or relating to such
Collateral, on behalf of and in the name of such Credit Party;
(v) to sell, assign, transfer, make any agreement in respect of,
or otherwise deal with or exercise rights in respect of, any
Collateral or the goods or
services which have given rise thereto, as fully and completely as
though the Agent were the absolute owner thereof for all purposes;
(vi) to adjust and settle claims under any insurance policy
relating thereto;
(vii) to execute and deliver all assignments, conveyances,
statements, financing statements, continuation financing statements,
FAA filings or registrations, security agreements, affidavits, notices
and other agreements, instruments and documents that the Agent may
determine necessary in order to perfect and maintain the security
interests and liens granted in this Security Agreement and in order to
fully consummate all of the transactions contemplated herein;
(viii) to institute any foreclosure proceedings that the Agent
may deem appropriate; and
(ix) to do and perform all such other acts and things as the
Agent may reasonably deem to be necessary, proper or convenient in
connection with the Collateral.
This power of attorney is a power coupled with an interest and shall be
irrevocable until all Credit and Collateral Termination Events have
occurred. The Agent shall be under no duty to exercise or withhold the
exercise of any of the rights, powers, privileges and options expressly or
implicitly granted to the Agent in this Security Agreement, and shall not
be liable for any failure to do so or any delay in doing so. The Agent
shall not be liable for any act or omission or for any error of judgment or
any mistake of fact or law in its individual capacity or its capacity as
attorney-in-fact except acts or omissions resulting from its gross
negligence or willful misconduct or breaches of this Security Agreement or
any other Credit Documents in any material respect. This power of attorney
is conferred on the Agent solely to protect, preserve and realize upon its
security interest in the Collateral.
Assignment by the Agent. Subject to the terms of the Credit Agreement,
the Agent may from time to time assign the Secured Obligations and any
portion thereof and/or the Collateral and any portion thereof, and the
assignee shall be entitled to all of the rights and remedies of the Agent
under this Security Agreement in relation thereto.
(b) The Agent's Duty of Care. Other than the exercise of reasonable
care to assure the safe custody of the Collateral while being held by the
Agent hereunder, the Agent shall have no duty or liability to preserve
rights pertaining thereto, it being understood and agreed that the Credit
Parties shall be responsible for preservation of all rights in the
Collateral, and the Agent shall be relieved of all responsibility for the
Collateral upon surrendering it or tendering the surrender of it to the
Credit Parties. The Agent shall be deemed to have exercised reasonable care
in the custody and preservation of the Collateral in its possession if the
Collateral is accorded treatment substantially equal to that which the
Agent accords its own property, which shall be no less than the
treatment employed by a reasonable and prudent agent in the industry, it
being understood that the Agent shall not have responsibility for taking
any necessary steps to preserve rights against any parties with respect to
any of the Collateral. In the event of a public or private sale of
Collateral pursuant to Section 10 hereof, the Agent shall have no
obligation to clean-up, repair or otherwise prepare the Collateral for
sale.
12. Application of Proceeds. Any amounts on deposit in the Collection
Accounts, the Cash Concentration Accounts, or any other deposit account over
which the Agent has Control, and any replacement or successor accounts relating
thereto, as applicable, shall be applied by the Agent in accordance with the
terms of the Credit Agreement and the Deposit Account Control Agreement relating
thereto. Upon the occurrence and during the continuation of an Event of Default,
any payments in respect of the Secured Obligations and any proceeds of the
Collateral, when received by the Agent or any of the Lenders in cash or its
equivalent, will be applied in reduction of the Secured Obligations in the order
set forth in Section 2.8 of the Credit Agreement, and each Credit Party
irrevocably waives the right to direct the application of such payments and
proceeds and acknowledges and agrees that the Agent shall have the continuing
and exclusive right to apply and reapply any and all such payments and proceeds
in the Agent's sole discretion, notwithstanding any entry to the contrary upon
any of its books and records.
13. Costs of Counsel. If at any time hereafter, whether upon the occurrence
of an Event of Default or not, the Agent employs counsel to prepare or consider
amendments, waivers or consents with respect to this Security Agreement, or to
take action or make a response in or with respect to any legal or arbitral
proceeding relating to this Security Agreement or relating to the Collateral, or
to protect the Collateral or exercise any rights or remedies under this Security
Agreement or with respect to the Collateral, then the Credit Parties agree to
promptly pay upon demand any and all such reasonable costs and expenses of one
counsel representing the Agent or following the occurrence and during the
continuance of an Event of Default counsel for the Agent and the Lenders,
actually incurred, all of which costs and expenses shall constitute Secured
Obligations hereunder.
14. Continuing Agreement.
(a) This Security Agreement shall be a continuing agreement in every
respect and shall remain in full force and effect until all of the Credit
and Collateral Termination Events have occurred. Upon the occurrence of all
of the Credit and Collateral Termination Events, this Security Agreement
shall be automatically terminated and, subject to the provisions of Section
14(b) below, all Liens hereunder released and the Agent shall, upon the
request and at the expense of the Credit Parties, forthwith release all of
its liens and security interests hereunder and shall execute, if necessary,
and deliver all UCC termination statements and/or other documents
reasonably requested by the Credit Parties evidencing such termination and
release. Notwithstanding the foregoing all releases and indemnities
provided hereunder shall survive termination of this Security Agreement.
(b) This Security Agreement shall continue to be effective or be
automatically reinstated, as the case may be, if at any time payment, in
whole or in part, of any of the Secured Obligations is rescinded or must
otherwise be restored or returned by the Agent
or any Lender as a preference, fraudulent conveyance or otherwise under any
bankruptcy, insolvency or similar law, all as though such payment had not
been made; provided that in the event payment of all or any part of the
Secured Obligations is rescinded or must be restored or returned, all
reasonable costs and expenses (including without limitation any reasonable
legal fees and disbursements) actually incurred by the Agent or any Lender
in defending and enforcing such reinstatement shall be deemed to be
included as a part of the Secured Obligations.
15. Amendments; Waivers; Modifications. This Security Agreement and the
provisions hereof may not be amended, waived, modified, changed, discharged or
terminated except as set forth in Section 14.9 of the Credit Agreement.
16. Successors in Interest. This Security Agreement shall create a
continuing security interest in the Collateral and shall be binding upon each of
the parties hereto, and their respective successors and assigns as permitted
under the Credit Agreement, and shall inure, together with all rights and
remedies of each of the parties hereto and their respective permitted successors
and assigns; provided, however, that none of the Credit Parties may assign its
rights or delegate its duties hereunder without the prior written consent of
each Lender or the Required Lenders, as required by the Credit Agreement. To the
fullest extent permitted by law, each Credit Party hereby releases the Agent and
each Lender, each of their respective officers, employees and agents and each of
their respective successors and assigns, from any liability for any act or
omission relating to this Security Agreement or the Collateral, except for any
liability arising from the gross negligence or willful misconduct of or breach
of this Security Agreement in any material respect by the Agent or such Lender
or their respective officers, employees and agents.
17. Notices. All notices required or permitted to be given under this
Security Agreement shall be in conformance with Section 14.4 of the Credit
Agreement.
18. Counterparts. This Security Agreement may be executed in any number of
counterparts, each of which where so executed and delivered shall be an
original, but all of which shall constitute one and the same instrument. It
shall not be necessary in making proof of this Security Agreement to produce or
account for more than one such counterpart.
19. Headings. The headings of the sections and subsections hereof are
provided for convenience only and shall not in any way affect the meaning,
construction or interpretation of any provision of this Security Agreement.
20. Governing Law; Submission to Jurisdiction and Service of Process;
Arbitration. THIS SECURITY AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF GEORGIA, WITHOUT GIVING EFFECT TO THE
CHOICE OF LAW PROVISIONS THEREOF. The terms of Sections 14.2 and 14.3 of the
Credit Agreement are incorporated herein by reference, mutatis mutandis, and the
parties hereto agree to such terms.
21. Waiver of Jury Trial. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH
OBLIGOR AND THE AGENT HEREBY WAIVE ANY RIGHT TO A TRIAL BY
JURY IN ANY ACTION OR PROCEEDING ARISING OUT OF THIS SECURITY AGREEMENT, THE
CREDIT DOCUMENTS OR ANY OTHER AGREEMENTS OR TRANSACTIONS RELATED HERETO OR
THERETO.
22. Severability. If any provision of any of the Security Agreement is
determined to be illegal, invalid or unenforceable, such provision shall be
fully severable and the remaining provisions shall remain in full force and
effect and shall be construed without giving effect to the illegal, invalid or
unenforceable provisions.
23. Entirety. This Security Agreement, the other Credit Documents, the
Lender Hedging Agreements and the agreements pertaining to Bank Products
represent the entire agreement of the parties hereto and thereto, and supersede
all prior agreements and understandings, oral or written, if any, including any
commitment letters or correspondence relating to the Credit Documents, the
Lender Hedging Agreements, the agreements pertaining to Bank Products or the
transactions contemplated herein and therein.
24. Survival. All representations and warranties of the Credit Parties
hereunder shall survive the execution and delivery of this Security Agreement,
the other Credit Documents and the Lender Hedging Agreements or any agreement
pertaining to Bank Products, the delivery of the Notes and the making of the
Loans and the issuance of the Letters of Credit under the Credit Agreement.
25. Rights of Required Lenders. All rights of the Agent hereunder, if not
exercised by the Agent at the direction of the Required Lenders, may be
exercised by the Required Lenders.
26. Marshalling. Neither the Agent nor any Lender shall be under any
obligation to marshal any assets in favor of any Credit Party or any other
Person or against or in payment of any or all of the Secured Obligations.
[remainder of page intentionally left blank]
IN WITNESS WHEREOF, each of the parties hereto has caused a
counterpart of this Security Agreement to be duly executed and delivered as of
the date first above written.
OBLIGORS: WORLD AIR HOLDINGS, INC.,
a Delaware corporation
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
WORLD AIRWAYS, INC.,
a Delaware corporation
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
NORTH AMERICAN AIRLINES, INC.,
a Delaware corporation
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
WORLD AIRWAYS PARTS COMPANY, LLC,
a Delaware limited liability company
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Accepted and agreed to as of the date first above written.
WACHOVIA BANK, NATIONAL
ASSOCIATION, as Agent
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
