1
EXHIBIT 10.1
AMENDMENT AND WAIVER NO. 1 dated as of March 24, 2000
(this "Amendment") to the Credit Agreement dated as of
August 12, 1999 (as amended, supplemented or otherwise
modified from time to time, the "Credit Agreement"), among
WFS HOLDINGS, INC., a Delaware corporation, WORLDWIDE FLIGHT
SERVICES, INC., a Delaware corporation (the "Company"), the
lenders listed in Schedule 2.01 thereto (the "Lenders") and
THE CHASE MANHATTAN BANK, a New York banking corporation, as
administrative agent for the Lenders (in such capacity, the
"Administrative Agent").
The Company has requested that certain provisions of the Credit
Agreement be amended or waived in the manner provided for in this Amendment, and
the Lenders are willing to agree to such amendments and waivers as provided for
in this Amendment.
Accordingly, on the terms and subject to the conditions set forth
herein the parties hereto hereby agree as follows:
1. Defined Terms. Capitalized terms used and not defined herein shall
have the meanings given to them in the Credit Agreement.
2. Amendments. (a) Section 1.01 of the Credit Agreement is hereby
amended by deleting the definition of "Consolidated EBITDA" and replacing it
with the following definition:
"Consolidated EBITDA" means, for any period, Consolidated Net Income
for such period plus (a) without duplication and to the extent deducted in
determining such Consolidated Net Income, the sum of (i) consolidated
interest expense for such period, (ii) consolidated income tax expense and
other taxes based on net income for such period, (iii) all amounts
attributable to depreciation and amortization for such period, (iv) amounts
accrued in respect of the management fees owed to Xxxxxx Xxxxxx under the
Management Agreement, whether or not paid, and (v) any extraordinary losses
or nonrecurring non-cash charges for such period, and minus (b) without
duplication and to the extent included in determining such Consolidated Net
Income, any extraordinary or non-cash gains or other non-cash items for
such period, all determined on
2
a consolidated basis in accordance with GAAP. For purposes of calculating
Consolidated EBITDA for any period (each, a "Reference Period") in
connection with a determination of the Leverage Ratio or the Senior
Leverage Ratio for such period, if during such Reference Period (or, in the
case of pro forma calculations, during the period from the last day of such
Reference Period to and including the date as of which such calculation is
made) the Borrower or any Subsidiary shall have made a Material Disposition
or Material Acquisition, Consolidated EBITDA for such Reference Period
shall be calculated after giving pro forma effect thereto as if such
Material Disposition or Material Acquisition occurred on the first day of
such Reference Period (with the Reference Period for the purposes of pro
forma calculations being the most recent period of four consecutive fiscal
quarters for which the relevant financial information is available);
provided, that such pro forma calculations shall not give effect to
operating expense reductions and other cost savings, other than as approved
by the Administrative Agent. As used in this definition, "Material
Acquisition" means any Permitted Acquisition or series of related Permitted
Acquisitions that involves consideration (including any noncash
consideration) with a fair market value in excess of $2,500,000; and
"Material Disposition" means any disposition of property or series of
related dispositions of property that involves assets comprising all or
substantially all of an operating unit of a business or constitutes all or
substantially all of the Equity Interests of a Subsidiary.
(b) Section 1.01 of the Credit Agreement is hereby amended by deleting
the definition of "Total Indebtedness" and replacing it with the following
definition:
"Total Indebtedness" means, as of any date, the sum of (a) the
aggregate principal amount of Indebtedness of the Borrower and the
Subsidiaries outstanding as of such date, in the amount that would be
reflected on a balance sheet prepared as of such date on a consolidated
basis in accordance with GAAP, plus (b) the aggregate principal amount of
Indebtedness of the Borrower and the Subsidiaries outstanding as of such
date that is not required to be reflected on a balance sheet in accordance
with GAAP (except for any such Indebtedness attributable to the issuance
discount of the Senior Notes), determined on a consolidated basis.
3
3. Waivers. (a) The Lenders hereby waive any Default or Event of
Default resulting from a failure to comply with Section 6.12, Section 6.13 or
Section 6.14 of the Credit Agreement to the extent that, and only to the extent
that, such Default or Event of Default would not have occurred if the amendments
to the Credit Agreement provided for in Section 2 of this Amendment had become
effective on the Effective Date.
(b) Subject to paragraph (c) below, the Lenders hereby waive any
Default or Event of Default resulting from a failure to comply with Section
5.01(f) of the Credit Agreement with respect to the budget to be delivered for
the fiscal year of the Borrower beginning on January 1, 2000.
(c) The waiver provided for by paragraph (b) above shall cease to be
effective and have no further force and effect at 12:01 a.m., New York City
time, April 15, 2000, and at such time and at all times thereafter the Credit
Agreement shall apply in all respects as originally in effect without regard to
such waiver, and the Administrative Agent and the Lenders shall have all rights
and remedies under the Credit Agreement that they would have had if such waiver
had never been granted.
4. No Other Amendments or Waivers; Confirmation. Except as expressly
amended or waived hereby, the provisions of the Credit Agreement are and shall
remain in full force and effect.
5. Representations and Warranties. The Company hereby represents and
warrants to the Administrative Agent and the Lenders as of the date hereof:
(a) After giving effect to the waiver provided for herein, no Default
or Event of Default has occurred and is continuing.
(b) All representations and warranties of the Company contained in the
Credit Agreement (other than representations or warranties expressly made
as of an earlier date) are true and correct in all material respects on and
as of the date hereof with the same force and effect as if made on and as
of the date hereof.
6. Effectiveness. This Amendment shall become effective only upon the
receipt by the Administrative Agent of counterparts hereof, duly executed and
delivered by the Borrower and the Required Lenders.
4
7. EXPENSES. The Borrower agrees to reimburse the Administrative Agent
for its out-of-pocket expenses in connection with this Amendment, including the
reasonable fees, charges and disbursements of Cravath, Swaine & Xxxxx, counsel
for the Administrative Agent.
8. GOVERNING LAW; COUNTERPARTS. (a) This Amendment and the rights and
obligations of the parties hereto shall be governed by, and construed and
interpreted in accordance with, the laws of the State of New York.
(b) This Amendment may be executed by one or more of the parties
hereto on any number of separate counterparts, and all of said counterparts
taken together shall be deemed to constitute one and the same instrument.
5
This Amendment may be delivered by facsimile transmission of the relevant
signature pages hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed and delivered by their respective proper and duly authorized
officers as of the day and year first written above.
WFS HOLDINGS, INC.,
By: /s/ Xxxxxx Xxxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: President
WORLDWIDE FLIGHT SERVICES, INC.,
By: /s/ Xxxxx X. Xxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Chief Executive Officer
THE CHASE MANHATTAN BANK,
individually and as Administrative Agent
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Managing Director
