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EXHIBIT 10.1
Execution Copy
WAIVER dated as of August 13, 2001, to the Credit
Agreement dated as of August 12, 1999, as amended (the "Credit
Agreement"), among WFS HOLDINGS, INC., a Delaware corporation
("Holdings"), WORLDWIDE FLIGHT SERVICES, INC., a Delaware
corporation (the "Borrower"), the lenders party thereto (the
"Lenders"), THE CHASE MANHATTAN BANK, a New York banking
corporation, as Administrative Agent, and DLJ CAPITAL FUNDING,
INC., as Syndication Agent.
A. Capitalized terms used and not defined herein shall have the
meanings given to them in the Credit Agreement.
B. The Borrower has requested that the Required Lenders grant a limited
waiver of compliance with, and amend certain provisions of, the Credit Agreement
in the manner provided for in this Waiver, and the Required Lenders are willing
to agree to such waiver, each as provided for in this Waiver.
C. The Borrower intends to repay all of the Obligations outstanding
under the Credit Agreement and the other Loan Documents no later than September
30, 2001 with the proceeds of a financing (the "Refinancing"). A nationally
recognized financial institution has delivered to the Borrower a letter
summarizing the proposed terms and conditions of a financing in an aggregate
amount sufficient to consummate the Refinancing.
D. Prior to or simultaneously with the effectiveness of this Waiver,
Xxxxxx Xxxxxx Partners III, L.P. (the "Sponsor") will enter into (i) a sponsor
support agreement (the "Support Agreement") with Holdings, the Borrower and the
Administrative Agent in the form of Exhibit A hereto pursuant to which the
Sponsor will agree, subject to the terms and conditions set forth therein, to
make cash contributions to the Borrower in an aggregate amount of up to
$10,000,000 and (ii) a subordination agreement (the "Subordination Agreement")
with Holdings, the Borrower and the Administrative Agent in the form of Exhibit
B hereto. The execution and delivery of the Support Agreement and the
Subordination Agreement are sometimes referred to here as the "Transactions".
Accordingly, on the terms and subject to the conditions set forth
herein, the parties hereto hereby agree as follows:
SECTION 1. Waiver. Subject to the conditions and agreements set forth
in Sections 3 and 5 hereof, the Lenders hereby waive any Defaults or Events of
Default that exist or arise under Sections 6.12 and 6.13 of the Credit Agreement
on the date hereof or thereafter through 11:59 p.m., New York time, on October
15, 2001 with the effect that any such Default or Event of Default did not
occur; provided that such waiver will automatically expire, with the same effect
as if it had never been granted, at 11:59 p.m., New York time, on October 15,
2001.
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SECTION 2. Effect of Waiver. Except as expressly set forth herein, this
Waiver shall not by implication or otherwise limit, impair, constitute a waiver
of, or otherwise affect the rights or remedies of the Lenders or Holdings, the
Borrower or any other Loan Party under the Credit Agreement or any other Loan
Document, and shall not alter, modify, amend or in any way affect any of the
terms, conditions, obligations, covenants or agreements contained in the Credit
Agreement or any other Loan Document, all of which are ratified and affirmed in
all respects and shall continue in full force and effect. Nothing herein shall
be deemed to entitle any Loan Party to a consent to, or a waiver, amendment,
modification or other change of, any of the terms, conditions, obligations,
covenants or agreements contained in the Credit Agreement or any other Loan
Document in similar or different circumstances. The waiver in Section 1 hereof
shall apply and be effective only with respect to the matters expressly covered
thereby. This Waiver shall constitute a "Loan Document" for all purposes of the
Credit Agreement and the other Loan Documents.
SECTION 3. Agreements of Holdings and the Borrower. (a) Holdings and
the Borrower agree that at any time that this Waiver is in effect, the aggregate
principal amount of Loans outstanding under the Credit Agreement shall not
exceed the lesser of (i) $50,000,000 and (ii) the Borrowing Base in effect at
such time.
(b) Holdings and the Borrower agree that the failure of the Borrower to
consummate the Refinancing on or prior to October 15, 2001 shall constitute an
immediate Event of Default under the Credit Agreement.
SECTION 4. Representations and Warranties. Each of Holdings and the
Borrower represents and warrants to each of the Lenders that:
(a) This Waiver has been duly authorized, executed and delivered by
each of Holdings and the Borrower.
(b) After giving effect to this Waiver and the Transactions, the
representations and warranties of each of Holdings and the Borrower set
forth in the Loan Documents are true and correct in all material respects
on and as of the date hereof, in each case with the same effect as though
made on and as of the date hereof, except to the extent such
representations and warranties expressly relate to an earlier date.
(c) On the date hereof and immediately after giving effect to this
Waiver and the Transactions, no Default has occurred and is continuing.
SECTION 5. Conditions to Effectiveness. This Waiver shall become
effective on the date (the "Waiver Effective Date") when (a) the Sponsor,
Holdings and the Borrower shall have executed and delivered the Support
Agreement and the
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Subordination Agreement, and all conditions precedent to the effectiveness of
each of them shall have been satisfied, (b) the Administrative Agent shall have
received a certificate signed by a Financial Officer of the Borrower
substantially in the form attached hereto as Annex I, (c) the Sponsor (i) shall
have available to it at least $10,000,000 in cash, cash equivalents and
available commitments under its liquidity facility (the "Liquidity Facility")
for which all conditions precedent to drawing capable of being satisfied prior
to a drawing have been satisfied, (ii) shall have delivered to Cravath, Swaine &
Xxxxx a true and complete copy of the agreement evidencing the Liquidity
Facility and (iii) shall have delivered to the Administrative Agent an officer's
certificate certifying that the conditions set forth in sub-clause (i) of this
clause (c) have been satisfied and that each document delivered pursuant to
sub-clause (ii) of this clause (c) is a true and complete copy thereof, (d) the
Sponsor shall have taken such actions that are required pursuant to Section 6
hereof, (e) the Administrative Agent shall have received counterparts of this
Waiver that, when taken together, bear the signatures of Holdings, the Borrower
and the Required Lenders, (f) the Borrower shall have paid, to the extent
invoiced, all out-of-pocket expenses (including fees and charges of counsel for
the Administrative Agent) of the Administrative Agent required to be paid or
reimbursed by the Borrower under the Credit Agreement and (g) the Administrative
Agent shall have received payment of all fees payable by the Borrower in
connection with this Waiver, including the fees described in Section 9 below.
SECTION 6. Financial Information and Review. (a) Prior to the Waiver
Effective Date, the Borrower shall have delivered to the Administrative Agent a
certificate of the Chief Financial Officer of the Borrower calculating and
certifying the Borrowing Base as of July 31, 2001, in each case on a pro forma
basis giving effect to the Transactions.
(b) On each occasion that the Borrower requests any Borrowing under the
Credit Agreement or any Sponsor Contribution (as defined therein) under the
Support Agreement, the Borrower shall deliver to the Administrative Agent a
certificate of the Chief Financial Officer of the Borrower (i) calculating and
certifying the Borrowing Base on such date, (ii) setting forth the amount of
such Borrowing (and any Sponsor Contribution required to be made in connection
therewith) or such Sponsor Contribution, as applicable, and (iii) setting forth
the aggregate principal amount of all Sponsor Contributions made since the
Waiver Effective Date.
(c) No later than 5 p.m. New York time on each Friday that is after the
Waiver Effective Date and before the earlier of the consummation of the
Refinancing and October 15, 2001, the Borrower shall deliver to the
Administrative Agent a certificate of the Chief Financial Officer of the
Borrower (i) calculating and certifying the Borrowing Base on such date and (ii)
setting forth the aggregate principal amount of all Sponsor Contributions made
since the Waiver Effective Date.
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SECTION 7. APPLICABLE LAW. THIS WAIVER SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 8. Counterparts. This Waiver may be executed in two or more
counterparts, each of which shall constitute an original but all of which when
taken together shall constitute but one agreement. Delivery of an executed
counterpart of a signature page of this Waiver by facsimile transmission shall
be effective as delivery of a manually executed counterpart of this Waiver.
SECTION 9. Waiver Fee. The Borrower agrees to pay to the Administrative
Agent, for the account of each Lender on the Waiver Effective Date, an amendment
fee equal to 0.250% of such Lender's Revolving Commitment in effect as of 5:00
p.m., New York City time, on the Waiver Effective Date; provided that the
foregoing fee shall not be payable unless this Waiver becomes effective as
provided in Section 5 above.
IN WITNESS WHEREOF, the parties hereto have caused this Waiver to be
duly executed and delivered by their respective proper and duly authorized
officers as of the day and year first above written.
WFS HOLDINGS, INC.,
By:
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Name:
Title:
WORLDWIDE FLIGHT SERVICES, INC.,
By: /s/ DF CHARENSON
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Name: DF Charenson
Title: VP
